Case Law Details

Case Name : Total Environment Building Systems Pvt Ltd Vs DCIT (ITAT Bangalore)
Appeal Number : ITA No.352/Bang/2023
Date of Judgement/Order : 18/12/2023
Related Assessment Year : 2012-13

Total Environment Building Systems Pvt Ltd Vs DCIT (ITAT Bangalore)

ITAT Bangalore held that unless the debt has been written off in the books of accounts of both the assessees, it cannot be said that “that cease to exist”. Hence, as assessee has not written off the same in its books of accounts and it cannot be said that the debt ceased to exist. Thus, amount cannot be considered as cessation of liability u/s. 41(1) of the Income Tax Act.

Facts- AO while passing assessment order has disallowed the Value Added Tax Provision at the year end amounting to Rs.42,52,413/- on the ground that the same has not been paid before the due date of filing of the return of income and therefore, the same was disallowed u/s 43B of the Act by ld. AO.

NFAC also observed that VAT payable was routed through P&L account are not liable to be allowed as deduction only on actual payment by applying the payment made u/s 43B of the Act. Hence, the said VAT payable of Rs.42,52,413/- without making actual payment before the due date of furnishing of return of income u/s 139(1) of the Act needs to be added to the income of assessee. Against this assessee is in appeal before us.

Further, appeal is also preferred with regard to addition of Rs. 39,65,829/- towards cessation of lability without appreciating that the liability was existing during the assessment year 2012-13.

Conclusion- Held that in our opinion, as rightly pointed out by the ld. D.R., it has been included in Liability for Expenses in Schedule 11 – Other Current Liabilities. Being so, in our opinion, if the payment has not been made within due date of filing return u/s 139(1) of the Act to the government account, the impugned VAT payment cannot be allowed as a deduction though it was not routed through the P&L account.

Hon’ble Supreme Court in the case of CIT Vs. Sugauli Sugar Works Pvt. Ltd. that unless the debt has been written off in the books of accounts of both the assessees, it cannot be said that “that cease to exist”. The cessation of liability may occur either by reason of the operation of law i.e. on the liability of becoming unenforceable law by the creditor and the debtor declaring unequivocally his intention not to honour his liability when payment is demanded by the creditor or contact between the parties or by the discharge of the debt, the debtor making payment there of to his creditor. As discussed in earlier para, in the present case, the assessee has not written off the same in its books of accounts and it cannot be said that the debt ceased to exist. Being so, we are of the opinion that in the assessment year under consideration, this amount cannot be considered as cessation of liability u/s 41(1) of the Act. This ground of appeal of the assessee is allowed.

FULL TEXT OF THE ORDER OF ITAT BANGALORE

This appeal by assessee is directed against order of NFAC passed u/s 250 of the Income Tax Act, 1961 (in short “The Act”) for the assessment year 2012-13 dated 2.3.2023.

2. The first ground for our consideration is with regard to disallowance of 42,52,413/- on account of unpaid VAT liability u/s 43B of the Act.

No Cessation of Liability us 41(1) as debt not written off in books

3. As per the statement of facts of the case furnished before us, the AO while passing assessment order has disallowed the Value Added Tax Provision at the year end amounting to Rs.42,52,413/- on the ground that the same has not been paid before the due date of filing of the return of income and therefore, the same was disallowed u/s 43B of the Act by ld. AO. Against this assessee went in appeal before NFAC and stated before the NFAC that since the VAT payable amount of Rs.42,52,413/- never routed through the P&L account, the provision u/s 43B of the Act can never be applied when the amount has not been routed through the P&L account. The ld. AO disallowed the same on the fact that no evidences towards assessment order or demand notice and further no payment has been made before filing of return of income to allow the deduction of such provision. The assessee has also stated before the NFAC that the provision created as on 31.3.2012 was reversed on April 1, 2012. As the provision was reversed on April 1, 2012, there was no need to make payment and even the same was never considered as disallowance in the audit report. The NFAC observed that VAT payable was routed through P&L account are not liable to be allowed as deduction only on actual payment by applying the payment made u/s 43B of the Act. Hence, the said VAT payable of Rs.42,52,413/- without making actual payment before the due date of furnishing of return of income u/s 139(1) of the Act needs to be added to the income of assessee. Against this assessee is in appeal before us.

4. Before us, A.R. submitted that an amount of Rs.42,52,413/- which represents input credit carried forward – VAT shown as other current assets in schedule 20 to balance sheet and is not a liability shown by assessee in its books of accounts. As such, it cannot be allowed.

4.1 In this regard, she relied on the order of the Tribunal in the case of S & A Finman in ITA No.2220/Del/2017 dated 14.12.2022 wherein held that the amount of service tax not been routed through P&L account cannot be disallowed u/s 43B of the Act. For the same proposition, he relied on the judgement of Delhi High Court in the case of CIT Vs. Noble & Hewitt (I) Pvt. Ltd. reported in (2008) 166 taxman 48 (Del).

5. On the other hand, D.R. submitted that it has been shown as a liability in Schedule 11 as liability for expenses under the Schedule 11 – Other current liabilities and the judgement relied by the ld. CIT(A) in case of Munaf Ibrahim Memon in ITA No.1806/Pune/2013 dated 30.10.2015 is directly on the issue. As such, unless the VAT amount has been deposited before the due date of filing of return of income u/s 139(1) of the Act, though it was not routed through P&L account, it cannot be allowed as a deduction.

6. We have heard the rival submissions and perused the materials available on In our opinion, similar issue came for consideration before this Tribunal in the case of Hubli Electrical Supply in ITA No.341/Bang/2023 dated 1.12.2023 wherein held as under:

10. We have heard the rival submissions and perused the materials available on record. The ld. A.R. made a plea that the above impugned amount has not been charged to P&L account and as such provisions of section 43B of the Act cannot be applied and he relied on the order of the coordinate bench of Delhi Tribunal in the case of S&A Finman Ltd. in ITA No.2220/Del/2017 dated 14.12.2022 and also order of the Hyderabad Bench of Tribunal in the case of Envision Enterprises Solutions Ltd. in ITA No.315/Hyd/2016 dated 12.8.2016.

10.1 Now the question before us is whether above payment is liable for disallowance u/s 43B of the Act or not, which is not paid before the due date of filing the return of income. As per the provisions of section 43B of the Act, any sum payable by assessee by way of tax, duty, cess or fee by whatever name called, no in law for the time being in force not paid within due date of filing return of income to be disallowed computing the income of the assessee. Now the question is that when the assessee is not claimed it as an expenditure in the P&L account, could it be disallowed u/s 43B of the Act. This was considered by the Hon’ble Supreme Court in the case of Chowringhee Sales Bureau Pvt. Ltd. 1973) 87 ITR 542 (SC) in which was held that sales tax collected by assessee is revenue receipt even if it is shown by the assessee not non-revenue head and such treatment by the assessee is not decisive.

10.2 Further, in the case of M/s. Jain Christopher v. DCIT in ITA 855/Bang/2012 – order dated 12.04.2013, it was held as under:-

“7.2 During the course of assessment proceedings, the AO observed that a sum of Rs.29 lakhs representing service tax collected by the assessee had not been paid, but, was shown as ‘outstanding liability’. Being queried, it was explained that it had not preferred any claim for deduction and, thus, it was argued, the question of disallowance u/s 43B of the Act does not arise. The AO took a view that even though the assessee had not claimed the same in its P & L account as an expenditure and, therefore, section 43B has no application. However, he was of the view that the fact remains that service tax collected by the assessee but not paid to the Government account up-to the end of the financial year or even up-to the date of filing of the return of income and, thus, by not including this amount in its service, it had clearly made a claim indirectly. As rightly highlighted by the CIT(A), the assessee’s plea that sales-tax was different from service tax cannot be accepted in the present circumstance as what the assessee was a firm of Chartered Accountants is selling is services and not goods, so the tax applicable is service tax which stands on the same bracket as sales tax in terms of services rendered as sales tax holds for goods sold. We have also observed that the AO had pointed out that the said amount has been included as business receipts in its TDS Certificates and as such, the same should have been included in its receipts. This has not been precisely done by the assessee. The case laws relied on by the assessee is dealt with as under:

(i) ACIT Real Image Media Technologies (P) Ltd. (ITAT Chennai):

7.2.1 The assessee was running a recording and dubbing studio, production of advertisement, films and television serials etc., as well as in software development. The amount of service tax included in bills issued but not received. Accordingly, the Hon’ble Tribunal had recorded its findings that ‘As per s. 68 of Finance Act, 1994 read with rule 6 of Service Tax Rules, 1994, the service tax becomes payable only on receipt of service tax from the client. Therefore, the amount of service tax included in bills but not received could not be disallowed under s. 43B’. After analysing the relevant provisions of Income tax Act as well as Service Tax Act, the Tribunal had, further, recorded its findings as under:

“12………………From a plain reading of the above provision it becomes clear that the rigour of this provision would be attracted only in a case where an item is allowable as deduction but because of the failure to make payment such deduction will not be allowed. It can be argued that in the case of ST also the assessee does not claim deduction since it has been held that non-payment of Sales-tax would attract provisions of section 43B, but that is being done on the basis of the principles laid down by the Hon’ble Supreme Court in the case of Chowranghee Sales Bureau Ltd. V CIT 110 ITR 385 that Sales-tax is part of the trading receipt. Further, section 145A clearly provides that for the purpose of determining income under the head profits and gains of business or profession, the amount of purchase and sales i.e. turnover would include any tax, duty cess or fee. Therefore, the rigour of section 43B may be applicable in the case of Sales-tax or Excise Duty but the same cannot be said to be the position in case of Service- tax because of two reasons. Firstly, the assessee is never allowed deduction on account of service tax which is collected on behalf of the Govt. and paid to the Govt. accordingly. Therefore, a service provider is merely acting as an agent of the Govt. and is not entitled to claim deduction on account of service tax. Hence, on this account alone addition u/s 43B could not be made and the same has been correctly deleted by the CIT(Appeals)”.

However, in the instant case, as admitted by the assessee, service tax has been collected but not paid to the Government account either up- to the end of the financial year or even up-to the date of filing of the return of income. Thus, the case law relied on by the assessee is distinguishable and cannot come to the rescue of the assessee.

(ii) CIT Noble and Hewitt India (P) Ltd (Del)

7.2.2 The Hon’ble Delhi High Court was predominantly concerned with the disallowance of deduction by invoking the provisions of section 43B of the Act. The Hon’ble Delhi High Court was not considering the issue whether the service tax collected and the remaining unpaid till the due date of furnishing of the return forms the part of the total income for the current year.

(iii) DCIT v Manish M Chheda 29SOT 138 – Mumbai ITAT

7.2.3 In the above case, the Hon’ble Mumbai Tribunal was considering the applicability of section 28(iv) of the I T Act. In the instant case, it is an admitted fact that during the course of assessee’s profession, a sum of Rs.29,60,000/- was realised/collected as service tax payable and the same is not capital receipt. The moment the service tax is realised, it becomes payable to the account and if it is not paid, it partakes the character of income of the assessee, since the assessee could utilise this amount in any manner whatsoever, there is no restriction placed on its utilisation. This is amply clear from the TDS certificate furnished by the assessee and also the credit appearing in the assessee’s bank account. Therefore, to arrive at the professional income, the service tax realised should have been included in the gross receipts unless paid to Government exchequer within the due date of filing of return. Since service tax realised is included in the total income, the same is to be allowed as a deduction in the year it is paid to the Government account. In the instant case, this is what has been done by the learned CIT(A). The CIT(A) had allowed the alternative plea of the assessee and had directed the Assessing Officer to deduct the service tax when the payment is made to the Govt. account in the subsequent year. Therefore, we find there is no merit in the contention raised on behalf of the assessee and this issue is decided against the assessee. It is ordered accordingly.”

10.3 Further, in the case of M/s. Hemkunt Infratech (P) Ltd. v. DCIT [ITA No.6683/Del/2017 – order dated 23.03.2018], the Delhi Benches of the Tribunal held as under:-

“6. After hearing both the sides and perusing the entire material available on record, we observe that there is a credit balance of Rs.1,16,09,924/- at the end of the year towards expenses payable. The assessee submitted that it is service tax liability, which arose due to crediting the service tax received from the service recipients. The assessee has challenged before us, the disallowance ofRs.85,26,467/- disallowed u/s. 43B of the Act. We observe that the assessee has recorded his turnover after deducting the service tax received and the service tax has been credited separately. In section 145, of the Act for determining the income chargeable under the head profits and gains of business or profession or income from other sources, the same is to be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. The said provisions were substituted by the Finance Act, 1995 w.e.f. 01.04.1997. Under section 145A of the Act, it is provided that notwithstanding anything to the contrary contained in clause(a) to section 145, the valuation of purchase and sale of goods and inventory, for the purpose of determining the income chargeable under the head profits and gains of business or profession, shall be (i) in accordance with method of accounting regularly employed by the assessee; and (ii) further adjusted to include the amount of any tax, duties, cess or fees, by whatever name called, actually paid or incurred by the assessee, to bring the goods to the place of its location and condition, as on the date of valuation. As per the explanation under the said clause, it is pointed out that for the purpose of this section, any tax, duties, cess or fees, by whatever name called, under any law for the time being in force, shall include all such payments, notwithstanding any right arising as a consequence to such payments. Sub-clause (b) talks of interest received by the assessee on compensation or enhanced compensation, which is not relatable to the issue before us. The aforesaid provisions of section 145A of the Act have been substituted by the Finance (No.2) Act, 2009 w.e.f. 01.04.2010. Prior to its substitution, which was inserted by the Finance (No.2) Act, 1998 w.e.f. 01.04.1999, the section provided the provision relatable to the valuation of purchase and sale of goods and inventory, for the purpose of determining the income chargeable under the head profits and gains of business or profession and no clause (b) was provided i.e. in respect of income received by the assessee on compensation or on enhanced compensation. In view of the amended provisions of the Act, which came into effect from 01.04.1999 for valuing the purchases and sales of goods and also for valuing the inventory, while determining the income chargeable under the head profits and gains of business or profession, it has been provided that the said valuation would be in accordance with the method of accounting regularly employed by the assessee i.e. either mercantile or cash. Further, adjustment is to be made to include the amount of any tax, duties, cess or fees, by whatever name called, actually paid or incurred by the assessee to bring the goods to the place of its location and condition, as on the valuation date. In other words, where any expenditure is actually paid or incurred by the assessee by way of any tax, duties, cess or fees, by whatever name called, then adjustment is to be made both in the valuation of purchase and sale of goods and also in the valuation of inventory to include the aforesaid amounts while determining the income chargeable under head profits and gains of business or profession. The assessee has separately accounted for the service tax collected is also the indirect part of turnover because it is received along with turnover. The assessee has not shown any invoice raised by him before us as per service tax Rules, which is mandatory for the service provider to issue invoice to the service recipient. He has also not produced any evidence regarding payment received from service recipients as to how they have paid – separately or inclusive of service Tax. He has also not produced any evidence regarding whether the TDS has been remitted on payment after excluding the service tax. After going through the paper book filed by the assessee, we observe that the assessee has utilized service tax credit towards payment of duty on capital goods and as per Reverse Charge Mechanism. Therefore, it is necessary to discuss the relevant provisions of the Cenvat Credit Rules, 2004 as well as section 43B of the IT Act.

7. Section 43B(a) is as under :

43B. Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of—

(a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or

8. Rule 4 of the CENVAT Credit Rules, 2004 reads as under :

Rule 4. Conditions for allowing CENVAT credit.-

(1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service:

Provided that in respect of final products, namely, articles of jewellery falling under heading 7113 of the First Schedule to the Excise Tariff Act, the CENVAT credit of duty paid on inputs may be taken immediately on receipt of such inputs in the registered premises of the person who get such final products manufactured on his behalf, on job work basis, subject to the condition that the inputs are used in the manufacture of such final product by the job worker.

(2) (a) The CENVAT credit in respect of capital goods received in a factory or in the premises of the provider of output service at any point of time in a given financial year shall be taken only for an amount not exceeding fifty per cent. of the duty paid on such capital goods in the same financial year:

Provided that the CENVAT credit in respect of capital goods shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year if such capital goods are cleared as such in the same financial year.

Provided further that the CENVAT credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, in respect of capital goods shall be allowed immediately on receipt of the capital goods in the factory of a manufacturer.

Provided also that where an assessee is eligible to avail of the exemption under a notification based on the value of clearances in a financial year, the CENVAT credit in respect of capital goods received by such assessee shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year.

Explanation.- For the removal of doubts, it is hereby clarified that an assessee shall be “eligible” if his aggregate value of clearances of all excisable goods for home consumption in the preceding financial year computed in the manner specified in the said notification did not exceed rupees four hundred lakhs.

(b) The balance of CENVAT credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, or in the premises of the provider of output service, if the capital goods, other than components, spares and accessories, refractories and refractory materials, moulds and dies and goods falling under heading 6805, grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to the Excise Tariff Act, are in the possession of the manufacturer of final products, or provider of output service in such subsequent years.

Illustration.- A manufacturer received machinery on the 16th day of April, 2002 in his factory. CENVAT of two lakh rupees is paid on this machinery. The manufacturer can take credit upto

a maximum of one lakh rupees in the financial year 2002-2003, and the balance in subsequent years.

(3) The CENVAT credit in respect of the capital goods shall be allowed to a manufacturer, provider of output service even if the capital goods are acquired by him on lease, hire purchase or loan agreement, from a financing company.

(4) The CENVAT credit in respect of capital goods shall not be allowed in respect of that part of the value of capital goods which represents the amount of duty on such capital goods, which the manufacturer or provider of output service claims as depreciation under section 32 of the Income-tax Act, 1961( 43 of 1961).

(5) (a) The CENVAT credit shall be allowed even if any inputs or capital goods as such or after being partially processed are sent to a job worker for further processing, testing, repair, re- conditioning, or for the manufacture of intermediate goods necessary for the manufacture of final products or any other purpose, and it is established from the records, challans or memos or any other document produced by the manufacturer or provider of output service taking the CENVAT credit that the goods are received back in the factory within one hundred and eighty days of their being sent to a job worker and if the inputs or the capital goods are not received back within one hundred eighty days, the manufacturer or provider of output service shall pay an amount equivalent to the CENVAT credit attributable to the inputs or capital goods by debiting the CENVAT credit or otherwise, but the manufacturer or provider of output service can take the CENVAT credit again when the inputs or capital goods are received back in his factory or in the premises of the provider of output service.

(b) The CENVAT credit shall also be allowed in respect of jigs, fixtures, moulds and dies sent by a manufacturer of final products to,-

(i) another manufacturer for the production of goods; or

(ii) a job worker for the production of goods on his behalf, according to his specifications.

(6) The Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of the manufacturer of the final products who has sent the input or partially processed inputs outside his factory to a job-worker may, by an order, which shall be valid for a financial year, in respect of removal of such input or partially processed input, and subject to such conditions as he may impose in the interest of revenue including the manner in which duty, if leviable, is to be paid, allow final products to be cleared from the premises of the job-worker.

(7) The CENVAT credit in respect of input service shall be allowed, on or after the day which payment is made of the value of input service and the service tax paid or payable as is indicated in invoice, bill or, as the case may be, challan referred to in rule 9.

9. As per Rule 6(1) of the Service Tax Rules, 1994, in case of company, service tax is to be paid on a monthly basis by 5th of the following month (in case of e-payment, by 6th of the month immediately following the respective month). However, the payment for the month of March is required to be made by 31st of March itself. As per Rule 6(4) of the Service Tax Rules, 1994, the assessee can pay for provisional payment of service tax in case he is not able to correctly estimate the tax liability. In such a situation, he may request in writing to the jurisdictional Assistant/Dy. Commissioner for the same.

10. As per section 73A of the Finance Act, 1994, any person who has collected any sum on account of Service Tax, is under obligation to pay the same to the Government. He cannot retain the sum so collected with him by contending that the service tax is not payable.

11. As per section 173A of the Service Tax Act, in case, the service tax is collected, the provision is as under :

173A. Service Tax collected from any person to be deposited with Central Government:-

(1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made there under from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central

Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith

(2) pay the amount so collected to the credit of the Central Government.

(3) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) or sub-section (2) and the same has not been so paid, the Central Excise Officer shall serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government.

(4) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub- section (3), determine the amount due from such person, not being in excess of the amount specified in the notice, and thereupon such person shall pay the amount so determined.

(5) The amount paid to the credit of the Central Government under subsection (1) or subsection (2) or sub-section (4), shall be adjusted against the service tax payable by the person on finalisation of assessment or any other proceeding for determination of service tax relating to the taxable service referred to in sub-section (1).

(6) Where any surplus amount is left after the adjustment under subsection (5), such amount shall either be credited to the Consumer Welfare Fund referred to in section 12C of the Central Excise Act, 1944 or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount.]

12. We further observe that the point of taxation as per Rule 3 of Point of Taxation Rules, 2011 is as under :

RULE 3. Determination of point of taxation. – (Notification No. 18/2011- ST dt. 01.03.2011 as amended).

For the purposes of these rules, unless otherwise provided, point of taxation shall be,-

(a) the time when the invoice for the service provided or agreed to be provided is issued :

Provided that where the invoice is not issued within the time period specified in rule 4A of the Service Tax Rules, 1994, the point of taxation shall be the date of completion of provision of the service.

(b) in a case, where the person providing the service, receives a payment before the time specified in clause (a), the time, when he receives such payment, to the extent of such payment :

Provided that for the purposes of clauses (a) and (b), –

(i) in case of continuous supply of service where the provision of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the receiver of service to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of provision of service;

(ii) wherever the provider of taxable service receives a payment up to rupees one thousand in excess of the amount indicated in the invoice, the point of taxation to the extent of such excess amount, at the option of the provider of taxable service, shall be determined in accordance with the provisions of clause (a).

Explanation – For the purpose of this rule, wherever any advance by whatever name known, is received by the service provider towards the provision of taxable service, the point of taxation shall be the date of receipt of each such advance.”

13. After considering the above provisions, it is clear that the assessee has to pay service tax within due date as set out under the above provisions either by way of cash/cheque or by way of availing CENVAT credit as per Rules as stated above, but the assessee did not do so. The liability of service tax had also arisen as per the point of Taxation Rules, as stated above.

14. Now, we have to examine the case of the assessee in the light of the above provisions. During the impugned year, the assessee has credit balance of service tax payable as on 31.03.2013 of Rs.1,16,09,924/- which was to be paid upto 31.03.2013 by the assessee, but he did not pay. Further, the assessee had paid a sum of Rs.30,83,457/- before filing of IT return. As per section 43B(a), the above outstanding payment was to be paid upto the date of filing of return of income. As per method of accounting, the assessee has also not included the service tax received by him in the turnover. In fact, the assessee was legally obliged to declare its turnover inclusive of service tax received. The assessee cannot be exonerated from its liability by saying that he accounted for the service tax received separately. Since the assessee did not pay service tax as contemplated u/s. 43B(a) and as per above provisions of Service Tax Act within the stipulated time, therefore, the ld. CIT(A) has rightly disallowed the same u/s. 43B of the IT Act. The case laws relied by the assessee are based on different footings as in all the decisions it was held that Service Tax was not at all payable because the service Tax was not received from the customer. The law prevailing at that particular time was that Service Tax was to be paid to the Government only when Service Tax is received from the service receiver to the service provider. Subsequently, there is change in the law which provides that Service Tax is to be deposited by the service provider even if service tax is not paid by the service receiver to the service provider. Therefore, in all those decisions it was held that service tax outstanding is hit by the provisions of Section 43B of the Income Tax Act. 1961. Due to the change in the law now those decisions does not help to the assessee. Moreover, the assessee has filed the service tax returns belatedly, i.e., for April to June on 16.04.2015, for July to September and half yearly from October to March, 2013 on 08.07.2015. In view of all these facts, the ld. CIT(A) has rightly dealt with the issue in question by giving elaborate findings in the impugned order regarding confirmation of addition u/s. 43B of the Act, which we do not find fit to be interfered with. Accordingly, the appeal of the assessee deserves to be dismissed.”

10.4 In view of the above, we have no hesitation to hold that non-payment of above amount to government account before the due date of filing the return is to be disallowed, though it was not charged to the P&L account and it attracts the provisions of section 43B of the Act and the provisions of section 145A of the Act cannot be applied in view of the non-obstante clause in section 43B of the Act. Same view has been taken by Cochin Bench of Tribunal in the case of ACIT Vs. Kunnel Engineers & Contractors Pvt. Ltd. in ITA No.653/Coch/2019 & 4/Coch/2020 dated 19.5.2020 and by the coordinate bench of Bangalore in the case of Mr. Asrah Nafisa Althaf in ITA No.614/Bang/2023 dated 9.11.2023. In view of this, we dismiss these grounds taken by the assessee.”

6.1 In the present case, it is an admitted fact that said VAT liabilities has been included in “liability for expenses” in Schedule 11 – Other Current It does mean that VAT liability has been shown as outstanding as on 31.3.2012. Contrary to this, the ld. A.R. made a submission that it has been shown as Input Credits Carried Forward VAT under Schedule 20 – other Current Assets and cannot be disallowed as a deduction. In our opinion, as rightly pointed out by the ld. D.R., it has been included in Liability for Expenses in Schedule 11 – Other Current Liabilities. Being so, in our opinion, if the payment has not been made within due date of filing return u/s 139(1) of the Act to the government account, the impugned VAT payment cannot be allowed as a deduction though it was not routed through the P&L account. Accordingly, we dismiss this ground of appeal taken by the assessee by placing reliance on the order of Tribunal cited (supra).

7. Next ground in this appeal is with regard to addition of 39,65,829/- towards cessation of lability without appreciating that the liability was existing during the assessment year 2012-13. The ld. A.O. has observed that the amount of Rs.32,48,485/- was due and not paid from last 1460 days. On enquiry, the ld. AO has submitted that this amount has not been paid by the vendors as there is a dispute on partial amounts due to overhaul claims made by them, due to deficiency in works, supply of materials and services, rectification work being done, advance being paid is to be adjusted, etc. as it is not a time barred debt and the assessee has not returned back the same in its books of accounts. The ld. AO not agreeing with the above contention made an observation that the liability in question is outstanding beyond 2 years. Further, when the material was supplied by the parties are defective, there cannot be any liability to pay for the same. Advance cannot be adjusted against the liability that is disputed. Hence, adjustment of advances, as stated by assessee, cannot be reason for liability to remain outstanding for such a long time. The principles of time barring need not be applied in the same way for the liabilities in question for the very reason that the amounts are disputed on account of fact that the works are defective. The assessee companies need not wait for 3 years for writing off such liabilities. Hence, he disallowed an amount of Rs.32,48,487/-. Against this assessee has carried the appeal to NFAC and the NFAC has observed that the said amount has been outstanding from 730 days to 1460 days and there was no transaction between the parties from 0 to 730 days. Hence, the contention of the assessee that vendors are having regular transaction with assessee is not acceptable. It is also evident that immediately following the year, the assessee was able to return back such huge liabilities. Considering the limitation period of 3 years, the assessee could have returned back such liability, which is ceased to exist during the present assessment year under consideration. Accordingly, they confirmed the order of the ld. AO. Against this assessee is in appeal before us.

8. The A.R. submitted that the mere entry in the books of accounts of the assessee made unanimously without any act on the part of the creditor will not enable the debtor to say that liability has come to an end. Apart from that, that will not by itself confer any benefit on the debtor as contemplated by section 41(1) of the Act. According to the ld. A.R., there was no remission or cessation of trading liability and assessee has not obtained any benefit by overdue of earlier or cessation, which is sine-qua-non for application of section 41(1) of the Act. For this purpose, he relied on the judgement of Hon’ble Supreme Court in the case of CIT Vs. Sugauli Sugar Works Pvt. Ltd. (102 Taxman 713) (SC).

8.1 Further, she relied on the judgement of Bombay High Court in the case of PCIT Batliboi Environmental Engineering Ltd. (141 Taxmann.com 245) (2022). She further relied on the order of Bangalore Bench of Tribunal in the case of ACIT Vs. Alvares & Thomas reported in 62 Taxmann.com 286 (2015) (Bang-Trib).

9. The D.R. submitted that the said amount has been outstanding since long period i.e. ranging from 730 to 1460 days and there was no transaction with those creditors and as such, it should be considered that there was no claim from the creditors for payment of the same and accordingly, she supported the order of the lower authorities.

10. We have heard the rival submissions and perused the materials available on In the present case, it is an admitted fact that an amount of Rs.39,65,829/- has been shown as outstanding in the books of accounts of assessee and also in its financial statements. This amount has not been written off by the assessee in its books of accounts and there is also no confirmation that the other party to whom the assessee is owing has written off these debts in their books of accounts. As held by Hon’ble Supreme Court in the case of CIT Vs. Sugauli Sugar Works Pvt. Ltd. that unless the debt has been written off in the books of accounts of both the assessees, it cannot be said that “that cease to exist”. The cessation of liability may occur either by reason of the operation of law i.e. on the liability of becoming unenforceable law by the creditor and the debtor declaring unequivocally his intention not to honour his liability when payment is demanded by the creditor or contact between the parties or by the discharge of the debt, the debtor making payment there of to his creditor. As discussed in earlier para, in the present case, the assessee has not written off the same in its books of accounts and it cannot be said that the debt ceased to exist. Being so, we are of the opinion that in the assessmensst year under consideration, this amount cannot be considered as cessation of liability u/s 41(1) of the Act. This ground of appeal of the assessee is allowed.

11. In the result, appeal of the assessee is partly allowed.

Order pronounced in the open court on 18th Dec, 2023

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