M/S BIHAR POLICE BUILDING CONS V. COMMISSIONER OF INCOME TAXandANR

MA/644/2007

AI Insights

The case involves M/S Bihar Police Building Construction (P) Ltd., the appellant, contesting an order from the Income Tax Appellate Tribunal, Patna, which disallowed a sum of Rs.28,40,821 for the assessment year 2002-2003 under Section 43B and Section 36(1)(iv) of the Income Tax Act. The primary legal questions revolved around the interpretation and application of Section 43B concerning the employer's contribution to provident fund and its retrospective applicability. The High Court examined whether the Tribunal erred in its application of these sections and whether it should have adhered to its earlier decisions or referred the matter to a larger bench due to conflicting interpretations.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 751410 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 11-03-2016
• Assessment Year: misc
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ARCHANA SINHA; ALOK KUMA R; SHALINI BIHARI
• Assessee Lawyers: AJAY RASTOGI
• Keywords: Disallowance; Employee-employer contribution; Judicial discipline; Law of precedence
• Section: 43B; 260A; 36(1)(iv)

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.644 of 2007 =========================================================== M/S Bihar Police Building Construction (P)Ltd., B.M. P.-5 Campus, B. V. College, District-Patna through Sri Anand, Chairman-cum-Managing Director. .... .... Assessee- Appellant Versus 1. Commissioner of Income Tax –I, Patna 2. Dy. Commissioner of Income Tax, Circle-2, Patna. .... .... Assessing Officer -Respondents =========================================================== Appearance : For the Appellant : Mr. Ajay Kumar Rastogi, Advocate For the Respondents : Mrs. Archana Sinha, Senior Standing Counsel Mr. Alok Kumar, Advocate Ms. Shalini Bihari, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA And HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 11-03-2016 The assessee is in appeal under Section 260A of the Income-tax Act, 1961 (for short, ‘the Act’) against an order passed by the Income Tax Appellate Tribunal, Patna Bench, Patna (for short, ‘the Tribunal’) in I.T.A. No.407 (Pat) of 2005 pertaining to assessment year 2002-2003. The learned Tribunal disallowed the amount of 28,40,821/- under Section 43B and Section 36(1) (iv) of the Act in view of the earlier order of the Tribunal dated 13th of April, 2007. The assessee has claimed the following substantial questions of law Patna High Court MA No.644 of 2007 dt.11-03-2016 2/3 for consideration in this appeal:- 1. Whether on the facts and in the circumstances of the case the Tribunal has erred in confirming disallowance of Rs.28,40,821/- made under Section 43B read with 36(1)(iv) of the Income Tax Act? 2. Whether on the facts and in the circumstances of the case the Tribunal is justified in holding that employee/employer contribution is not covered by Section 43B and is covered by Section 43B read with 36(1) (iv) of the Income Tax Act? 3. Whether on the facts and in the circumstances of the case the Tribunal is justified in holding that omission of the second proviso to Section 43B is not retrospective in nature? 4. Whether on the facts and in the circumstances of the case the Tribunal is required to follow its earlier order on identical issue in order to maintain judicial discipline and in order to adhere to the law of precedence? 5. Whether on the facts and in the circumstances of the case the Tribunal is required to refer the matter/issue to larger/special bench in cases where there is departure/disagreement from its earlier order? Learned counsel for the appellant contends that question No.1 as raised in the present appeal was question No.(2) in Patna High Court MA No.644 of 2007 dt.11-03-2016 3/3 Miscellaneous Appeal No.401 of 2008. The same was decided in favour of the assessee on 31st of March, 2015. In view of the said decision, the question No.(1) is covered by the aforesaid order and is required to be decided accordingly. Learned counsel for the Revenue fairly concedes that the issues raised in the present appeal are covered by the decision referred to by the learned counsel for the appellant. In view of the said fact, first question of law is answered in favour of the assessee and against the Revenue and it is held that the Tribunal was not justified in confirming the disallowance against delayed payment of employer’s contribution under Section 43B of the Act. The appeal stands disposed of accordingly. Sunil/- (Hemant Gupta, J) (Ramesh Kumar Datta, J) N. A. F. R. U "