By TIOL News Service

AHMEDABAD, JUNE 02, 2014: 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.

(See 2014-TIOL-880-HC-AHM-IT)