THE issue before the Bench is - Whether if
a service provider fails to collect service tax from its clients but once
pointed out by Audit, deposits the same with interest from own account, such
expenses can be claimed as eligible deduction u/s 37(1). And the verdict goes in
favour of the assessee.
Facts of the
case
The assessee
company had not collected service tax on mechanical erection and installation of
plant and machinery, structure work, piping work and works contract works for a
period of time. During the audit, the assessing authorities raised certain
objections and asked the assessee to furnish the reasons on why he failed to do
so. The assessee failed to furnish any answers to the objection, as a result the
assessee deposited service tax as specified by the authorities, with interest.
When the return was filed, the assessee claimed deduction on the service tax and
interest paid, as expenditure incurred for business. During the assessment, the
AO concluded that the amount paid as service tax and the interest thereon,
cannot be claimed for deduction as it was the outcome of infringing a provision
of law.
On
appeal, the CIT(A) ruled in favor of the assessee. The Tribunal further
confirmed the order of the CIT(A) and held that the assessee had debited these
expenses as service tax paid, and the same were to be incurred on
expenses on installation, work contract etc., therefore these expenses were
incidental and arose out of the business of the assessee and the same is
eligible for deduction u/s 37(1). It further explained that
the interest payment was only compensatory in nature, so it cannot be treated as
a penalty.
On appeal, the HC held
that,
++ we
have no hesitation in upholding the view of the CIT {A}, as confirmed by the
Tribunal. The amount was expended by the assessee during the course of business,
wholly and exclusively for the purpose of business. If the assessee had taken
proper steps and charged service tax to the service recipients and deposited
with the Government, there was no question of assessee expending such sum. It is
only because the assessee failed to do so, that he had to expend the said
amount, though it was not his primary liability. Be that as it may, this cannot
be stated to be a penalty for infraction of law.
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