BANSAL CORPORATION LTD. V. REGINAL PROVIDENT FUND COMMISS

CWJC/1507/2011

AI Insights

The case involves Bansal Corporation Ltd., which challenged the decision of the Employees Provident Fund Appellate Tribunal that affirmed the liability determined by the Assistant Provident Fund Commissioner. The petitioner argued that the authorities failed to identify the contractors employed and did not consider crucial documents like the TDS return, which listed the contractors. The respondents contended that the petitioner did not provide the list of contractors as required by the Act, leading to the determination of liability based on available records. The High Court found that the appellate tribunal did not adequately consider the grounds stated in the review application, particularly the factual details and legal precedents cited, leading to the quashing of the tribunal's order and a directive for a fresh review.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 726330 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 02-08-2012
• Assessment Year: misc
• Laws Referred To: Employees Provident Fund and Miscellaneous Provisions Act, 1952
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R S PRADHAN; JAINENDRA KUMAR
• Assessee Lawyers: RAJESH RANJAN; AJAY KUMAR
• Keywords: Contractors; Employees Provident Fund; Liability determination; Review Application; TDS return
• Section: 7(a); 7-B; 17(L)

Judgement Text

"Patna High Court CWJC No.1507 of 2011 (5) dt.02-08-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1507 of 2011 ====================================================== Bansal Corporation Ltd. Bansal Tower, Exhibition Road, Patna, Bihar Through Surendra Sharma .... .... Petitioner/s Versus 1. Regional Provident Fund Commissioner, R-Block, Patna 2. Assistant Provident Fund Commissioner, R-Block, Patna .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Rajesh Ranjan & Mr. Ajay Kumar, Advocates For the Respondent/s : Mr. R.S.Pradhan, Sr. Advocate with Mr. Jainendra Kumar, Advoate CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER 5 02-08-2012 Heard learned counsels for the petitioner and the respondents. Petitioner is aggrieved by the order dated 17th August, 2010 passed on an appeal by the Employees Provident Fund Appellate Tribunal vide ETA 408(3) 2005 whereby the order passed by the Assistant Provident Fund Commissioner dated 17th September, 2004 determining the liability of the petitioner has been affirmed. Petitioner’s application for review of the appellate order dated 17th August, 2010 filed in terms of the provisions of section 17 (L) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the ‘Act’) was dismissed by order dated 10th September, 2010 as contained in Annexure-5/1 communicated to the petitioner as per the letter dated 12th September, 2010. The moot submission advanced on behalf of the Patna High Court CWJC No.1507 of 2011 (5) dt.02-08-2012 petitioner is to the effect that the authorities did not make any endeavour to identify who were the contractors employed by the petitioner for doing the required work on behalf of the petitioner in order to determine the liability of the petitioner under the Act. It is submitted that notwithstanding the fact that it was incumbent upon the Commissioner to make an enquiry and ascertain who were the contractors who received the payments which in turn to be paid to the concerned workers engaged by them. It was further submitted that neither the authority make any enquiry nor the document i.e. the TDS return submitted by the petitioner to the Income Tax Department which duly contained the list of contractors who were engaged by the petitioner, was taken into consideration and the liability under the Act was determined without any legal justification. Had the authorities taken into consideration the documents produced by the petitioner at least the TDS return, the liability could had been otherwise. Learned counsel submits that on perusal of the order passed on the review application which was statutory, it would appear that the appellate tribunal rejected even the review application filed under the provisions of section 7(L) of the Act without considering the grounds stated in the review application specially the factual ground stated in paragraph 7 of the review application besides the law laid down by the Apex Court, as mentioned in paragraphs 4 & 5 of the review application. It is therefore contended that the appellate Patna High Court CWJC No.1507 of 2011 (5) dt.02-08-2012 authority while dismissing the review application committed serious error of law by not considering the grounds mentioned in the review application which could be apparent on perusal of the order passed on the review application vide Annexure-5/1. it is, accordingly, submitted that the order passed on the review application deserves to be quashed. On the other hand, Mr. R.S. Pradhan, learned Senior Counsel appearing for the respondents submits that under the scheme of the Act vide paragraph 36 it was incumbent upon the petitioner to provide the list of contractors which was not provided, and as such, the authorities considering the materials available on record has determined the liability. It is further contended that the TDS return filed by the petitioner before the Income Tax Department, as referred in the review application, was not filed before the Assistant Provident Fund Commissioner in the proceeding under section 7(A) of the Act as also the review application under section 7(B) of the Act. However, Mr. Pradhan could not dispute the fact that in the averments of the petitioner as stated in paragraph 7 of the review application before the Tribunal there is mention about the filing of TDS return. It is, however, submitted that since the petitioner did not submit the list of contractors as also the TDS return before the Assistant Provident Fund Commissioner, the order of the Assistant Provident Fund Commissioner could not be faulted. Patna High Court CWJC No.1507 of 2011 (5) dt.02-08-2012 Upon considering the rival submissions of the parties and their respective pleadings at least with respect to the order passed by the appellate tribunal on the review application filed by the petitioner as contained in Annexure- 5/1, it would appear that the grounds which were taken in the review application as contained in Annexure-5 to the effect that in case of necessity the authorities under the Act were obliged in law to make an enquiry for which a procedure is already prescribed under the Act. Besides the factual ground stated in paragraph 7 of the review application that the TDS return filed before the authority clearly mentions the list of contactors from whom TDS were deducted and the deducted amount deposited with the Income Tax Department, while disposing of the review application it was incumbent in law upon the reviewing authority to consider the ground to take appropriate decision permissible under the law. From the order passed on the review as contained in Annexure-5/1 it does not appear that the grounds taken by the petitioner has been considered as it finds no reference and no consideration. In the result, for the reasons and discussions made above, the order dated 10th September, 2010 passed on the review application by the appellate tribunal as communicated to the petitioner as per letter dated 12th September, 2010 as contained in Annexure-5/1 cannot be sustained in law. The same is accordingly quashed. The matter is remitted back to Patna High Court CWJC No.1507 of 2011 (5) dt.02-08-2012 the Employees Provident Fund Appellate Tribunal, New Delhi to pass a fresh order in accordance with law expeditiously preferably within a period of three months on receipt/production of the certified copy of the present order taking into consideration the grounds mentioned in the review application after giving an opportunity of hearing to the petitioner. It is, however, made clear that this Court has not gone into the merits of the order passed by the Tribunal dated 17th August, 2010 (Annexure-5) on an appeal filed by the petitioner. The writ application stands disposed of with the above observations/directions. Manish/- (Shailesh Kumar Sinha, J) "