Bajaj Processors Ltd., Ahmedabad V. The Income tax Officer, Ward-1(2), Ahmedabad

ITA 109/AHD/2011

• Counselvise Citation: 10920514 RSA 2011
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-03-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 17-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.109/AHD/2011 A.Y. 2006-07 BAJAJ PROCESSORS LTD., 109 NEW CLOTH MARKET, OUTSIDE RAIPUR GATE, AHMEDABAD. PAN: AABCB 3640D VS ITO WARD 1(2), AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J.P. JHANGID, SR.D.R. , ASSESSEE(S) BY : NONE (WRITTEN SUBMISSION) / DATE OF HEARING : 10/03/2014 / DATE OF PRONOUNCEMENT: 14/03/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M THE ORDER OF LEARNED CIT(A)-VI, AHMEDABAD, DATED 04.11.2010 AND THE SOLITARY GROUND IS REPRODUCED BELOW: THE LD. CIT(APPEALS VI AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN PASSING APPELLATE ORDER DATED 04/11/2010 FOR A.Y.2006-07 IN THE CASE OF APPELLANT BY CONFIRMING THE ADDITION OF RS.3,67,042/- ON ACCOUNT OF LATE PAYMENT OF PF AND ESIC ON ACCOUNT OF EMPLOYEES CONTRIBUTION. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S. 143(3) WERE THAT THE ASSESSEE COMPANY I S ENGAGED IN THE BUSINESS OF PROCESSING OF CLOTH. THE ASSESSEE HAS D ONE THE PROCESSING OF CLOTH FOR ITS OWN PRODUCTION AS WELL AS ON JOB WORK BASIS. IT WAS NOTED BY THE AO THAT THE ASSESSEE HAD NOT MADE FOLLOWING PAY MENTS WITHIN THE STIPULATED TIME. ITA NO.109/AHD/2011 BAJAJ PROCESSORS LTD. VS. ITO, AHMEDABAD. A.Y.2006-07 - 2 - (A) EPF (EMPLOYEES CONTRIBUTION) - RS.3,19,410/- (B) ESIC (EMPLOYEES CONTRIBUTION) - RS. 47,63 2/- RS.3,67,042/- 3. THE AO HAD INVOKED THE PROVISIONS OF SECTION 36( 1)(VA) R.W.S. 2(24)(X) OF IT ACT AND DISALLOWED THE TOTAL AMOUNT OF RS.93,67,042/-. 4. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, IT WAS HELD BY THE LEARNED CIT(A) THAT THE PROVISIO NS OF SECTION 40B ARE APPLICABLE IN RESPECT OF EMPLOYERS CONTRIBUTION AND NOT IN RESPECT OF EMPLOYEES CONTRIBUTION. HE HAS ALSO MENTIONED THAT THE AMENDMENT IN SECTION 43B COULD NOT BE APPLIED FOR EMPLOYEES CONT RIBUTION. AFTER DISCUSSING THE PROVISIONS OF SECTION 36(1)(VA), HE HAS HELD THAT IN THE ABSENCE OF ANY ORDER OF THE JURISDICTIONAL HIGH THE ADDITION WAS RIGHTLY MADE BY THE AO. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE ASSESSEE, HOWEVER A WRITTEN SUBMISSION IS PLACED ON RECORD WHEREIN THE ORDER OF THE ASSESSEE PASSED BY ITAT C BENCH AHMEDABAD FOR A.Y. 2005-06 IN ITA NO.32, 37/AHD/2010, DATED 1 7 TH JUNE, 2011 HAS BEEN FILED. IN THE SAID DECISION IN ASSESSEES OWN CASE, IT WAS HELD AS UNDER: WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MAT ERIAL ON RECORD AND FIND THAT THE ISSUE IS NOW COVERED BY THE DECISION OF TH IS TRIBUNAL IN THE CASE OF ITO WARD-3 VAPI VS. GUJARAT THEMIS BIOSYN LTD., IN ITA NO.2378/AHD/2008 FOR ASSESSMENT YEAR 2005-06 PRONOUNCED ON 30.07.201 0 WHEREIN TRIBUNAL HAS HELD AS UNDER: 5. WE FIND THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF P.M. ELECTRONICS LTD. (SUPRA) HAS DECIDED THIS ISSUE OF PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDSW PROVIDENT FUND AFTE R CONSIDERING THE DECISION OF HONBLE APEX COURT IN THE CASE OF V INAY CEMENT (SUPRA) AND ALSO DISTINGUISHED THE CASE LAW REFERRE D BY THE LD. DR OF BOMBAY HIGH COURT IN PAMWI TISSUES LTD. (SUPRA). EV EN NOW THIS ISSUE HAS BEEN CONSIDERED BY HONBLE APEX COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) / (2009) 185 TAXMAN 416 (SC), WHEREIN, IT IS HELD THAT CONTRIBU TION TO PROVIDENT FUND, MADE BEFORE DUE DATE OF FILING OF RETURN ALLO WABLE AS DEDUCTION. ITA NO.109/AHD/2011 BAJAJ PROCESSORS LTD. VS. ITO, AHMEDABAD. A.Y.2006-07 - 3 - THE DELETION OF THE SECOND PROVISO TO SECTION 43B, AND THE AMENDMENT TO THE FIRST PROVISO, BY THE FINANCE ACT, 2003 WAS TO OVERCOME IMPLEMENTATION PROBLEMS. CONSEQUENTLY, THE AMENDMEN TS, THOUGH MADE APPLICABLE BY PARLIAMENT ONLY WITH EFFECT FROM 1-4-2004, WERE CURATIVE IN NATURE AND WOULD APPLY RETROSPECTIVELY W.E.F. 1-4-1988. ACCORDINGLY, FOLLOWING APEX COURT IN THE CASE OF AL OM EXTRUSIONS LTD. (SUPRA) AND DELHI HIGH COURT IN P.M. ELECTRONICS LT D. (SUPRA), WE DISMISS THIS GROUND OF THE REVENUE. 4.1 THE ASSESSEE HAS FURNISHED A DETAIL OF MONTH-WI SE DEPOSIT OF EMPLOYEES CONTRIBUTION IN RESPECT OF PF AND ESIC. 5. FROM THE SIDE OF REVENUE, LEARNED DR HAS PLACED RELIANCE ON AN ORDER OF HONBLE GUJARAT HIGH COURT PRONOUNCED IN T HE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION, 41 TAXMAN N.COM 100 (GUJ) . 6. AFTER PERUSAL OF THE WRITTEN SUBMISSION FURNISHE D BY THE ASSESSEE ALONG WITH THE ORDER OF THE RESPECTED CO-ORDINATE B ENCH, IN THE LIGHT OF THE ORDERS PASSED BY THE REVENUE AUTHORITIES, AS WE LL AS THE ARGUMENTS OF LEARNED DR AND THE ORDER PASSED BY HONBLE GUJARAT HIGH COURT, WE ARE OF THE VIEW THAT THE FIRST STEP TO DEAL WITH THIS I SSUE IS TO ASCERTAIN THE DATES OF DEPOSIT. IN THE PRESENT CASE, WE HAVE NOTE D THAT NEITHER IN THE ORDER OF AO NOR IN THE ORDER OF CIT(A) THE DATES OF DEPOSIT HAVE BEEN MENTIONED. IT WAS AN ACCEPTED POSITION THAT THERE W AS DELAY IN MAKING THE DEPOSIT BUT ON WHAT EXACT DATES MONTH-WISE DEPOSITS HAVE BEEN MADE, WAS NOT NOTED BY THE REVENUE AUTHORITIES. WE, THERE FORE, REMIT THIS ISSUE BACK TO THE STAGE OF THE AO TO BE DECIDED AFRESH IN THE LIGHT OF THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT AND THE LA TEST LAW AS APPLICABLE ON THE DATE OF GIVING EFFECT TO THE ORDER OF THE TR IBUNAL. WITH THESE DIRECTIONS, WE HEREBY RESTORE THIS GROUND BACK TO T HE STAGE OF THE AO TO BE DECIDED DE NOVO AS PER THE DIRECTIONS MADE HEREI NABOVE. THE AO CAN ITA NO.109/AHD/2011 BAJAJ PROCESSORS LTD. VS. ITO, AHMEDABAD. A.Y.2006-07 - 4 - ALSO CONSIDER THE DECISIONS OF HONBLE SUPREME COUR T IN THE CASE OF ALOM EXTRUSION LTD., 319 ITR 300 (SC) AND VINAY CEM ENT, 213 CTR 268 (SC) . RESULTANTLY, GROUND MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSE ONLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED BUT FOR STATISTICAL PURPOSE ONLY. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 14/03/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD