S & IB Services(P)Ltd, Kolkata V. DCIT, Circle -10, Kolkata, Kolkata

ITA 1104/KOL/2012

• Counselvise Citation: 110423514 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 25-07-2012
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 43B

Judgement Text

, B , INCOME TAX APPELLATE TRIBUNAL, BENCH- B KOLKATA ( ) BEFORE . , ! SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER '#$ /AND 1 & ' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER $( / ITA NO.1104/KOL/2012 A.Y 2009-10 S & IB SERVICES PVT.LTD PAN: AALCS6434Q - #' - - VERSUS - . DCIT, CIRCLE-10, KOLKATA ( &* / APPELLANT ) ( +,&* / RESPONDENT ) &* .' / FOR THE APPELLANT +,&* .' / FOR THE RESPONDENT / SHRI ANUP SINHA, CA, LD.AR / SHRI A.S MONDAL, ADDL.CIT/SR.DR /'#0 1 2 /DATE OF HEARING : 13-02-2014 34 1 2 /DATE OF PRONOUNCEMENT: 14 -02-2014 5 / ORDER 1 &' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XII, KOLKATA IN APPEAL NO. 197/CIT(A)- XII/10/2011-12 FOR THE ASSESSMENT YEAR 2009-10. 2. SHRI ANUP SINHA, CA, LEARNED AR REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI A.S MONDAL, LEARNED ADDL.CIT/SR.DR REPRESENTED ON BEHALF OF THE REVENUE. 3.. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSE SSEE THAT THE ISSUE IN THE APPEAL WAS AGAINST THE ACTION OF THE LD.CIT(A) IN NOT ALLO WING THE CLAIM OF DEDUCTION U/S.43B OF THE I.T ACT 1961 IN RESPECT OF THE EMPLOYEES CONTR IBUTION TO PF/ESI, WHICH HAS BEEN PAID BEFORE THE DUE DATE OF FILING OF THE RETURN. I T WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F ALOM EXRUSION LTD VS. CIT ITA NO. 1104/KOL/12- S & IB SERVICES P.LTD 2 REPORTED IN 319 ITR 306(SC), THE EMPLOYEES CONTRIB UTION TO PF/ESI HAVING BEEN PAID BEFORE THE DUE DATE OF FILING OF THE RETURN AND THE SAME WAS ALLOWABLE. 4. IT WAS, HOWEVER, SUBMITTED BY THE LEARNED ADDL.C IT/SR.DR THAT THE CLAIM OF DEDUCTION U/S. 43B OF THE ACT WAS NOT MADE BY THE A SSESSEE IN ITS ORIGINAL RETURN, BUT HAS MADE THE CLAIM BY ITS REVISED COMPUTATION OF TO TAL INCOME. IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (I) LTD VS. CIT REPORTED IN (2006) 284 ITR 323 (SC), THE A SSESSEE HAVING NOT FILED THE REVISED RETURN, THE CLAIM OF DEDUCTION U/S. 43B OF THE ACT IN RESPECT OF EMPLOYEES CONTRIBUTION TO PF/ESI COULD NOT BE ALLOWED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT TH E OUTSET, IT IS NOTICED THAT THE ISSUE OF DEDUCTION U/S. 43B OF THE ACT IN RESPECT O F EMPLOYEES CONTRIBUTION TO PF/ESI IF PAID BEFORE THE DUE DATE OF FILING OF RETURN IS DIR ECTLY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE C ASE OF CIT VS. M/S. VIJAY SHREE LIMITED IN ITAT NO.245 OF 2011 DATED 6 TH SEPTEMBER 2011 IN GA NO. 2607 OF 2011 DATED 7 TH SEPTEMBER 2011, THE SAME WAS ALLOWABLE. THE HONBL E JURISDICTIONAL CALCUTTA HIGH COURT HAS ALSO RELIED UPON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ALOM EXRUSION LTD (REFER TO SUPRA). IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF M/S. VIJAY SHREE LIMITED (REFER TO SUPRA) AS ALSO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ALOM EXRUSION LTD (REFER TO SUPRA), WE ARE OF THE VIEW THAT THE ASSESSEE IS ENT ITLED TO CLAIM OF DEDUCTION U/S. 43B OF THE ACT ONCE THE PAYMENT OF THE EMPLOYEES CONTRIB UTION TO PF/ESI IS MADE BEFORE THE DUE DATE OF FILING OF THE RETURN. 5.1. HOWEVER, COMING TO THE ISSUE THAT THE ASSESSEE HAS NOT FILED ITS REVISED RETURN, BUT HAS MADE THE CLAIM TO THE REVISED COMPUTATION OF TOTAL INCOME FILED IN THE COURSE OF ASSESSMENT, RELYING UPON THE DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD (REFER TO SUPRA) THE ISSUE IS RE STORED TO THE FILE OF THE AO TO VERIFY AS TO WHETHER THE EMPLOYEES CONTRIBUTION TO PF/ESI H AS BEEN PAID BEFORE THE DUE DATE OF FILING OF RETURN. IF THE ASSESSEE HAS PAID THE EMPL OYEES CONTRIBUTION IN RESPECT OF PF/ESI ITA NO. 1104/KOL/12- S & IB SERVICES P.LTD 3 BEFORE THE DUE DATE OF FILING OF RETURN, THEN THE A O SHALL ALLOW THE ASSESSEES CLAIM U/S. 43B OF THE ACT. 6. IN THE RESULT, THE ASSESSEES APPEAL IN ITA NO. 1104/KOL/2012 FOR THE ASSESSMENT YEAR 2009-10 STANDS ALLOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. 5 / 6 /' 7 8 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 14 -0 2-2014 SD/- SD/- ** PRADIP SPS 5 1 +..9 :94; / COPY OF THE ORDER FORWARDED TO: 1. . &* / THE APPELLANT :S & IB SERVICES PVT. LTD, SIB HOU SE, 1 ADYANATH SAHA ROAD, LAKE TOWN, KOL-48. . 2 +,&* / THE RESPONDENT- DCIT, CIRCLE-10, AAYAKAR BHAVAN , P-7 CHOWRINGHEE SQUARE, CALCUTTA-700 069. 3 .5' / THE CIT, 4. .5' ( )/ THE CIT(A) 5 . #<.7 +.' / DR, KOLKATA BENCH 6 . GUARD FILE . ,9 +./ TRUE COPY, 5'// BY ORDER, $ /ASSTT REGISTRAR ( . , ! ) ABRAHAMP.GEORGE, ACCOUNTANT MEMBER ( 1 & ' , ! ) GEORGE MATHAN, JUDICIAL MEMBER ( (( ( 2 2 2 2 ) )) ) DATE14/02/2014