Gyandev Sadh, Mumbai vs Assessee

Shri Gyandev Sadh, ACIT-20(1), Plot No.52, 7th Road, बनाम/ Room NO.603, 6th Floor, MIDC, Marol, Andheri (E), Piramal Chambers, Lalbaug, Mumbai-400093 Vs. Parel, Mumbai-400012 ( नधा$%रती /Assessee) (राज व /Revenue) P.A. No.JVPS5541C

नधा$%रती क ओर से / Assessee by Shri B.R. Majithia राज व क ओर से / Revenue by Shri Vijay Kumar Bora-DR

ु वाई क* तार+ख / Date of Hearing :

सन 18/05/2015

आदे श क* तार+ख /Date of Order: 18/05/2015

आदे श / O R D E R

Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 14/01/2013, of the ld. First Appellate Authority, Mumbai. The only ground raised this appeal pertains to confirming the 2 Shri Gyandev Sadh

addition of Rs.8,49,684/- on account of service tax collected and paid by the assessee while receiving the house rent.

2. During hearing, the ld. Counsel for the assessee, Shri B.R. Majithiya, advanced his arguments which are identical to the ground raised by contending that the service tax so collected was duly deposited with the government, thus, no income accrued to the assessee. However, the ld. DR, Shri Vijay Kumar Bora, defended the conclusion arrived at in the impugned order.

2.1. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we find that the assessee was driving income from house property, business income and interest, etc. The assessee declared income of Rs.34,15,476/-. While framing the assessment u/s 143(3) of the Act, the Assessing Officer made addition of the income received as a rent which includes service tax. There is no dispute to the fact that the service tax which was collected by the assessee was deposited with the state exchequer, thus, that portion of the service tax never remained with the assessee as the same was collected on behalf of the government as was deposited. The rent was received as per the terms and conditions of the agreement as per which the assessee was to deposit the service tax so collected with the government. We have perused the agreement (pages-16 to 30 of the paper book) and 3 Shri Gyandev Sadh

proof of deposit of service tax with the government (pages 32 to 35 of the paper book), thus, the service tax paid by the assessee after collecting as a agency of the government cannot be said to be income of the assessee. The assessee paid the amount of Rs.8,49,684/- (Rs.2,13,240 on 05/03/2008, Rs.2,50,294/- on 31/03/2008, Rs.2,87,330/- and 98,820/- on 07/12/2007). The CBDT Circular no.4/2008 dated 28/04/2008 explaining that service tax paid by the tenant does not part take the nature of the income of landlord as the landlord merely acts as a collecting agency of the government supports the case of the assessee. The decision of the Custom Excise and Gold Tribunal, Calcutta in Commissioner of Central Excise vs Advantage Media Consultant (2008) 10 STR 449 order dated 09/03/2008 supports the case of the assessee. In view of these undisputed facts, this ground of the assessee is allowed.

Finally, the appeal of the assessee is allowed. This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 18/05/2015.

Sd/- Sd/- (N.K. Billaiya) (Joginder Singh) लेखा सद#य / ACCOUNTANT MEMBER या$यक सद#य / JUDICIAL MEMBER मब

ंु ई Mumbai; ,दनांक Dated : 18/05/2015 f{x~{tÜ? P.S/. न.स.

आदे श क %$त'ल(प अ)े(षत/Copy of the Order forwarded to :

1. अपीलाथ0 / The Appellant

2. 12यथ0 / The Respondent.

4 Shri Gyandev Sadh

3. आयकर आय4 ु त(अपील) / The CIT, Mumbai. p4. आयकर आय4 ु त / CIT(A)- , Mumbai

5. 6वभागीय 1 त न ध, आयकर अपील+य अ धकरण, मब ुं ई / DR, ITAT, Mumbai

6. गाड$ फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, स2या6पत 1 त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मब ुं ई / ITAT, Mumbai