D.V. Properties (P.) Ltd. v. PCIT (2023) 203 ITD 283 (Surat) (Trib.)

S. 263 : Commissioner-Revision of orders prejudicial to revenue-short-term capital gain on Multiplex sold-Capital gains-Block of assets-Depreciable assets-Service tax-Delay in payment of TDS-Revision order is quashed partly-Employees’ contributions (EPF/ESI)-Revision is affirmed. [S. 36(1)(va), 37(1), 43B , 50, 143(3)]

Held that  information regarding addition to multiplex account was available in Schedule of Fixed assets and depreciation was a part of Statutory Audit Report and assessees had disclosed details in Form No. 3CD attached with return of income and assessment order was finalised after perusal of said return, assessment order passed by Assessing Officer allowing deduction claimed by assessee from short-term capital gain on Multiplex sold during year under consideration was neither erroneous nor prejudicial to interest of Revenue. Held that information regarding addition to multiplex account was available in Schedule (2.3) of Fixed assets and depreciation was a part of Statutory Audit Report and assessees had disclosed details in Form No. 3CD attached with return of income (ROI). Assessment order was finalised after perusal of ROI, material available on record and replies filed in response to notice issued under section 142(1). Therefore order passed by Assessing Officer was neither erroneous nor prejudicial to interest of revenue. Held that where assessee had paid service tax under reverse charge mechanism and, 0.5 per cent of Swachh Bharat Cess and 0.5 per  expenditure and remaining portion of service tax at rate of 14 per cent was set-off against amount payable, Assessing Officer had rightly allowed claim of Service tax Expense. Revision is held to be not valid. Held that assessee-employer is liable to deposit employee’s contribution towards PF/ESI on or before due date as a condition for deduction under section 36(1)(va). Following the ratio in  Checkmate Services (P.) Ltd. v. CIT (2022) 448 ITR 518 / (2023) 290 Taxman 19 (SC), revision order is affirmed.  (AY. 2018-19)

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