I.T.O Wd - 29(4),kolkata, Kolkata V. Smt. Kiran Dhelia, Kolkata

ITA 1163/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5108 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS JCIT SRDR
• Keywords: Question of law
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUSDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1163 / KOL / 2013 ASSESSMENT YEAR :2008-09 ITO WARD-29(4) AAYKAR DAKSHIN, 4 TH FLOOR, KOLKATA-700 068 V/S . SMT. KIRAN DHELIA 62-H, ALIPORE ROAD, KOLKATA-700 245 [ ADNPD 8863 C ] /APPELLANT .. / RESPONDENT /BY APPELLANT SMT. RANU BISWAS, JCIT, SR-DR /BY RESPONDENT NONE /DATE OF HEARING 04-02-2016 /DATE OF PRONOUNCEMENT 18-02-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XVI, KOLKATA DATED 08.03.2013. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-29, KOLKATA U/S 143(3) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 16.12.2010 FOR ASSESSMENT YEAR 2008-09 AND REVENUE HAS RAISED FOLL OWING GROUNDS:- 1. WHETHER THE BENEFIT OF DELAYED PAYMENT OF CONTR IBUTION OF WELFARE FUND I.E. PF AND ESI AS PER AMENDED PROVISIONS TO SECTION 43B IS LIMITED TO THE EMPLOYERS CONTRIBUTION PART ONLY OR IS ALSO AVAILA BLE TO EMPLOYEES CONTRIBUTION. 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN LAW AS W ELL AS ON FACTS IN DELETING THE DISALLOWANCE OF RS.35,22,348/- MADE BY THE AO O N ACCOUNT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TO PF AND ESI BY APPLYING AMENDED PROVISIONS OF SECTION 43B WRONGLY. ITA NO.1163/KOL/2013 A.Y.2008-09 ITO WD-29(4) KOL. V. SMT. KIRAN DHELIA PAGE 2 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE THOUGH NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. HEN CE, WE DECIDE TO HEAR THIS APPEAL WITHOUT APPEARING OF LD. COUNSEL OF THE ASSESSEE. SO WE PROCEED TO HEAR THIS APPEAL AFTER HEARING SMT. RANU BISWAS, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE. 3. COMMON ISSUES RAISED BY REVENUE IS THAT LD. CIT( A) ERRED IN DELETING THE DISALLOWANCE OF 35,22,348/- TOWARDS THE CONTRIBUTION OF PF AND ESI AS PER AMENDED SEC. 43B OF THE ACT. 3.1 FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIV IDUAL ENGAGED IN PROVIDING SERVICES TO BANK. DURING THE COURSE OF AS SESSMENT PROCEEDINGS ASSESSING OFFICER OBSERVED THAT THERE WAS A DELAY I N DEPOSITING THE CONTRIBUTIONS OF EMPLOYEES PF FUND WITH PF AUTHORIT IES. THEREFORE AO HAS DISALLOWED THE SAME RELYING ON THE PROVISIONS CONTA INED U/S 43B OF THE ACT. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING AS UND ER:- I CAREFULLY CONSIDER THE ASSESSMENT ORDER AS WELL A S THE SUBMISSIONS OF THE APPELLANT. I FOUND THAT THERE IS SUBSTANCE IN THE S UBMISSION OF THE APPELLANT THAT AS PER THE AMENDMENT OF PROVISIONS OF SECTION 43B, THE PAYMENT MADE BY THE EMPLOYEE TOWARDS CONTRIBUTION TO PF & ESI, G RATUITY, SUPERANNUATION AND OTHER WELFARE FUNDS ARE ALLOWED IF THE SAME ARE PAID BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME U/S. 139(1) OF TH E IT ACT. IN THE INSTANCE CASE, ALL THE PAYMENTS OF EMPLOYEE S CONTRIBUTION FUND TO PF, ESI TOTAL RS.35,22,348/- WERE PAID BEFORE THE DUE D ATE SPECIFIED U/S. 139(1) OF THE IT ACT. I RELIED UPON THE CASE LAW CITED BY THE APPELLANT AND AMENDED LAW I AM OF THE VIEW THAT THE ACTION OF THE AO IS NOT A S PER LAW TO DISALLOWING RS.35,22,348/-. THEREFORE, I DELETE THE ADDITION MA DE BY THE AO OF RS.35,22,348/-. THIS GROUND IS ALLOWED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS A VAILABLE ON RECORD. WE FIND THAT THE AO HAS MADE THE ADDITION OF THE AM OUNT OF THE EMPLOYEE CONTRIBUTION AS THERE WAS A SMALL DELAY IN PAYMENT TO PF AUTHORITIES. HOWEVER FROM THE ASSESSMENT ORDER WE FIND THAT ALL THE PAYMENT OF EMPLOYEES CONTRIBUTION WERE MADE BEFORE THE DUE DATE OF FILING OF INCOME TAX RETURN AS SPECIFIED U/S.139(1) OF THE ACT. NOW, THIS ISSUE S TANDS COVERED IN FAVOUR OF ITA NO.1163/KOL/2013 A.Y.2008-09 ITO WD-29(4) KOL. V. SMT. KIRAN DHELIA PAGE 3 ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. M/S VIJAY SHREE LIMITED VIDE ITAT NO.245 OF 2011 IN GA NO.2607 OF 2011 DATED 7 TH SEPTEMBER, 2011, WHEREIN IT HAS BEEN HELD AS UNDER:- AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARI NG ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COU RT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD. , WE FIND THAT THE SUPREME COURT IN THE AFORESAID CASE HAS HELD THAT THE AMENDMENT TO THE SECOND PROV ISO TO THE SEC. 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATIVE IN NATURE AND IS REQUIRED TO BE APPLIED RETROSPECTIVELY WITH EFFECT FROM 1 ST APRIL, 1988. SUCH BEING THE POSITION, THE DELETION OF THE AMOUNT PAID BY THE EMPLOYEES CONTRIBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVO KING THE AFORESAID AMENDED PROVISIONS OF SECTION 43(B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMISS THIS APPEAL. FROM THE ABOVE, WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S VIJAY SHREE LIMITED (SUPRA). AS THE ISSUE IS COVERED, HENCE, WE DISMISSED THE REVENUES APPEA L. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 18/ 02/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 18 / 02 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-29(4), AAYAKAR DAKSHIN, 4 TH FLOOR, KOLKATA-700068 2. /RESPONDENT-SMT. KIRAN DHELIA, 62-H ALIPORE ROAD, ALI PORE, KOLKATA-27 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,