Bhima Sahakari Sakhar Karkhana Ltd., Solapur V. ACIT Cir.1, Solapur

ITA 1094/PUN/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7602 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-01-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 15-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 1094/PN/2009: A.Y. 2006-07 BHIMA SSK LTD., A/P TAKLI SIKANDAR TAL. MOHOL, DIST. SOLAPUR PAN AAAABO 872 C APPELLANT VS. ASSTT. CIT CIR. 1, SOLAPUR RESPONDENT APPELLANT BY: SHRI PRAMOD SHINGTE RESPONDENT BY: SHRI ABHAY DAMLE ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A)-III PUNE DATED 24-7-2009 FOR A.Y. 2006-0 7 ON THE SOLE GROUND THAT THE CIT(A) HAS ERRED IN DISALLOWING AND ADDING BACK AN AMOUNT OF RS. 9,75,098/- ON ACCOUNT OF DISALLOWANCE U/S 43B OF THE ACT FOR BELATED PAYMENT OF EMPLOYEES CONTRIBUT ION TO PROVIDENT FUND. 2. THE ASSESSING OFFICER MADE DISALLOWANCE U/ 43B A MOUNTING TO RS. 9,75,098/- ON ACCOUNT OF BELATE4D PAYMENT OF EM PLOYEES CONTRIBUTION TO PROVIDENT FUND WHICH HAS BEEN CONFI RMED BY THE CIT(A). PAGE 2 OF 3 ITA NO. 1094/PN/2009 BHIMA SSK LTD. A.Y. 2006-07 3. THE LEARNED AR SUBMITTED THAT THIS ISSUE IS COVE RED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD (2009) 319 ITR 306 WHEREIN IT HAS BEEN HELD AS UNDER: THE OMISSION OF THE SECOND PROVISO TO SECTION 43B OF THE INCOME-TAX ACT, 1961 BY THE FINANCE ACT, 2003, OPER ATED, RETROSPECTIVELY, WITH EFFECT FROM APRIL 1, 1998 AND NOT PROSPECTIVELY FROM APRIL 1, 2004. EARLIER UNDER THE SECOND PROVISO TO SECTION 43B AS AMENDED BY THE FINANCE ACT, 1989, ASSESSES WERE ENTITLED TO DEDUCTION ONLY IF THE CONTRIBUTION STOOD CREDITED ON OR BEFOR E THE DUE DATE GIVEN IN THE PROVIDENT FUNDS ACT. THIS CREATE D FURTHER DIFFICULTIES AND ON A REPRESENTATION MADE TO THE FI NANCE ACT, 2003. THOUGH THIS AMENDMENT WAS MADE APPLICABLE WI TH EFFECT FROM APRIL 1, 2004, THE AMENDMENT WAS CURATI VE IN NATURE AND APPLIED RETROSPECTIVELY WITH EFFECT FROM APRIL 1, 1988. WHEN A PROVISO IN A SECTION IS INSERTED TO REMEDY U NINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE, THE PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION THEREIN IS REQUI RED TO BE READ RETROSPECTIVELY IN OPERATION, PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHOLE. 4. THE AFORESAID JUDGMENT OF HONBLE SUPREME COURT HAS BEEN FOLLOWED BY THE SUBSEQUENT DECISION IN THE CASE OF CIT VS. AIMIL LTD. (2010) 321 ITR 708 (DEL). IN THIS VIEW OF THE MATT ER, WE HOLD THAT THE AUTHORITIES WERE NOT JUSTIFIED IN MAKING THE DI SALLOWANCE U/S 43B ON ACCOUNT OF BELATED PAYMENT OF EMPLOYEES CON TRIBUTION TOWARDS PROVIDENT FUND. THE DISALLOWANCE IS THEREF ORE, DIRECTED TO BE DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. PAGE 3 OF 3 ITA NO. 1094/PN/2009 BHIMA SSK LTD. A.Y. 2006-07 DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH FEBRUARY 2011. SD/- SD/- (D. KARUNAKARA RAO) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 11 TH FEBRUARY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT- (A) III PUNE 4. THE CIT IV PUNE 5. THE D.R, A BENCH, PUNE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE