FKAYS ENGINEERING P. LTD, MUMBAI V. ACIT 8(1), MUMBAI

ITA 1186/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8317 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: KETAN D SAIYA
• Section: 43B; 143(3); 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI D.K. AGARWAL (J.M.) AND SHRI J. SUDHAKA R REDDY (A.M.) ITA NO. 1186/MUM /2010 ASSESSMENT YEAR : 2006-07 M/S FYKAYS ENGINEERING PVT. LTD., A/303, ANMOL APARTMENT, OPP. PATEL PETROL PUMP, OFF S.V. ROAD, GOREGAON (W), MUMBAI 400 062. PAN : AAACF 1558 M VS. ACIT , 8(1) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KETAN D. SAIYA RESPONDENT BY : SMT. ASHIMA GUPTA O R D E R PER D.K. AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 16.12.2009 PASSED BY THE LD. CIT (A) FOR THE A.Y 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF ENGINEE RING GOODS. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE A.O. FROM THE TAX AUDIT REPORT OBSERVED THAT THE ASSESSEE COMPANY HAS MADE BELATED PAYMENTS OF P.F AND ESIC AMOUNTING TO ` 1,05,677/- (PAYMENT OF P.F. ` 1,01,169/- + PAYMENT OF ESIC ` 4508/-). ACCORDING TO THE A.O. THE EMPLOYEES CONTRIBUTION TO P.F. AND ESIC HAS TO BE PAID WITHIN THE DUE DATES. SINCE THE SAME HAS NOT BEEN PAID, THEREFORE, THE A.O. HAS DISALLOWED AN AMOUNT OF ` 1,05.677/- U/S 2(24)(X) R.W.S. 36(1)(VA) OF THE AC T. THE A.O. ITA NO.118 6/MUM/2010 M/S FYKAYS ENGI NEERING PVT. LTD. 2 AFTER MAKING SOME OTHER DISALLOWANCES/ADDITION, COM PLETED THE ASSESSMENT AT AN INCOME OF ` 1,09,14,270/- VIDE ORDER DATED 24.12.2008PASSED U/S 143(3) OF THE I.T. ACT 1961 (T HE ACT). ON APPEAL, THE LD. CIT(A) WHILE AGREEING WITH THE VIEWS OF THE A.O., CONFIRMED THE DISALLOWANCE MADE BY THE A.O. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTENANCE OF DISALLOWANCE OF P.F. AND ESIC OF ` 105677/-. 4. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF PIK PEN PRI VATE LIMITED VS. ITO IN ITA NO. 6847/MUM/2008 FOR A.Y. 2005-06 ORDER DATED 28.1.2010 AND CIT VS. AIMIL LIMITED (DEL) AND RADHAKRISHNA FOODLA ND VS. ACIT (MUM). HE ALSO PLACED ON RECORD A COPY OF THE TRIBUNAL ORD ER. 5. ON THE OTHER HAND, THE LD. D.R. SUPPORTS THE ORD ER OF THE A.O. AND THE LD. CIT(A). 6. AFTER CAREFULLY HEARING THE RIVAL PARTIES AND PE RUSING THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE OPINION THAT THE ISSUE INVOLVED IN THE PRESENT CASE IS NO MORE RES INTEGRA AND IS COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN CIT VS. ALOM EXTRUSIONS LT D. (2009) 319 ITR 306 (SC), WHEREIN THEIR LORDSHIPS HAVE CONSIDERED T HE APPLICABILITY OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) AS WEL L AS 43B OF THE ACT AND IT HAS BEEN HELD THAT THE AMENDMENT WAS CURATIVE IN NATURE AND APPLICABLE RETROSPECTIVELY WITH EFFECT FROM APRIL 1 , 1988. ITA NO.118 6/MUM/2010 M/S FYKAYS ENGI NEERING PVT. LTD. 3 7. IN CIT VS. AIMIL LTD. (2010) 321 ITR 508(DEL.) T HEIR LORDSHIPS WHILE OBSERVING THAT THE ASSESSEE HAS DEPOSITED EMP LOYERS CONTRIBUTION AS WELL AS EMPLOYEES CONTRIBUTION TOWARDS PF AND ES IC AFTER THE DUE DATE, AS PRESCRIBED UNDER THE RELEVANT ACT/RULE BUT BEFORE THE DUE DATE FOR FILING THE RETURN UNDER THE INCOME TAX ACT HAVE HELD THAT NO DISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISION S OF SECTION 43B AS AMENDED BY THE FINANCE ACT, 2003. 8. IN VIEW OF THE ABOVE LEGAL POSITION AND IN ABSEN CE OF ANY CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE, WE ARE OF THE VIEW THAT THE PAYMENTS OF PF AND ESIC MADE BY THE ASSESSEE AFTER THE DUE DATE AS PRESCRIBED UNDER THE RELEVANT ACT/RULE BUT BEFORE T HE DUE DATE OF FILING OF RETURNS UNDER THE INCOME TAX ACT ARE ALLOWABLE A ND ACCORDINGLY WE DIRECT THE A.O. TO ALLOW THE SAME. THE ADDITION OF ` 105677/- MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) IS, THEREF ORE, DELETED. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, ALLOWED . 9. IN THE RESULT, ASSESSEES APPEALS STANDS ALLOWED . ORDER PRONOUNCED ON THIS 9 TH OF MARCH, 2011. SD/- (J. SUDHAKAR REDDY) ACCOUNTANT MEMBER SD/- (D.K. AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 9 TH MARCH, 2011. RK ITA NO.118 6/MUM/2010 M/S FYKAYS ENGI NEERING PVT. LTD. 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 16, MUMBA I 4. COMMISSIONER OF INCOME TAX, VIII, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH F, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO.118 6/MUM/2010 M/S FYKAYS ENGI NEERING PVT. LTD. 5 1 DR AFT DICTATED ON 1.3.11 , 3.3.11 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 2.3.11 ,3.3.11 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS