MUTHA FOUNDERS P. LTD, MUMBAI V. ITO WD 4(2)(4), MUMBAI

ITA 1221/MUM/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3836 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2000-2001
• Appeal Filed On: 15-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: G P MEHTA
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI R.S. SYAL, (AM) AND SHRI D.K. AGARWAL, (JM) ITA NO.1221/MUM/2010 ASSESSMENT YEAR : 2000-01 ITA NO.1222/MUM/2010 ASSESSMENT YEAR : 2003-04 MUTHA FOUNDERS PVT. LTD. C/O., G.P. MEHTA & CO. CAS, 807, TULSIANI CHAMBERS 212, NARIMAN POINT MUMBAI-400 021. ..( APPELLANT ) P.A. NO. (AAACM 3091 N) VS. INCOME TAX OFFICER WARD 4(1)(4) ROOM NO.647, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI G .P. MEHTA RESPONDENT BY : SHRI SUM EET KUMAR O R D E R PER D.K. AGARWAL (JM). THESE TWO APPEALS PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 20.01.10 AND 21.1.1 0 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEARS 2000-01 AND 03-04 RE SPECTIVELY. SINCE FACTS ARE IDENTICAL AND ISSUES INVOLVED ARE COMMON B OTH THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED FACTS OF THE CASE AS EXTRACTED FROM ITA NO.1221/M/2010 FOR THE ASSESSMENT YEAR 2000-01 ARE THAT THE ASSESSEE ITA NO.1221 & 22/M/10 A.Y:00-01 & 03-04 2 COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURE OF SHE LL MOULDED CASTINGS USED IN THE AUTOMOBILE INDUSTRY, FILED RETURN D ECLARING LOSS OF RS.40570/-. DURING THE COURSE OF ASSESSMENT IT WAS INTERAL IA OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS MADE THE FOLL OWING PAYMENTS BEYOND DUE DATES : EMPLOYERS CONTRIBUTION U/S. 43B I) PROVIDEND FUND 4,40,037 - II) ESIC 63,120 - III) LABOUR WELFARE FUND 770 - IV) GROUP GRATUITY FUND 1,88,395 6,92,322 EMPLOYEES CONTRIBUTION U/S.36(1)(V) OF THE I.TAX ACT: I) PF 3,91,329 - II) ESIC 25,929 - III) LAVOUR WELFARE FUND 256 4,17,514 TOTAL 11,09,836 ACCORDINGLY THE ASSESSING OFFICER DISALLOWED THE SAME U/S.4 3B R.W.S. 36(1)(VA) OF THE ACT AND COMPETED THE ASSESSMENT AT AN I NCOME OF RS.NIL AFTER DEDUCTING SET OFF OF CARRY FORWARD OF DEP RECIATION LOSS OF RS.10,69,265/- VIDE ORDER DATED 17.12.2007 PASSED U/S.1 43(3) R.WS.147 OF THE IT ACT, 1961 (THE ACT). ON APPEAL, T HE LD. CIT(A) WHILE RELYING ON THE DECISION OF THE TRIBUNAL IN ACIT VS. ROHAN DYES AND INTERMEDIATE LTD. IN ITA NO.5869/M/06 FOR ASSESSMEN T YEAR 2001- 02 DIRECTED THE ASSESSING OFFICER TO EXAMINE THE DATES OF PAYMENT AND ALLOW THE PAYMENTS MADE WITHIN THE GRACE PERIOD. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US. 4. GROUND NO.1, 4 & 5, COMMON IN BOTH THE APPEALS, AR E GENERAL IN NATURE AND IN THE ABSENCE OF ANY SPECIFIC PLEA THE SAME A RE THEREFORE, REJECTED. ITA NO.1221 & 22/M/10 A.Y:00-01 & 03-04 3 5. GROUND NO.2, COMMON IN BOTH THE APPEALS, IS AGAINST THE VALIDITY OF THE INITIATION OF PROCEEDING U/S.148. 6. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE SUBMITS THAT HE DOES NOT WANT TO PRESS THE ABOVE GROUND WHICH W AS NOT OBJECTED TO BY THE LD. DR. 7. THAT BEING SO, AND IN THE ABSENCE OF ANY SUPPORTING MATERIAL PLACED ON RECORD BY THE LD. COUNSEL FOR THE ASSESSEE, THE COMMON GROUND NO.2 TAKEN BY THE ASSESSEE IS, THEREFORE, REJECTED BEING NOT PRESSED. 8. COMMON GROUND NO.3 IN BOTH THE APPEALS IS AGAINST T HE SUSTENANCE OF ADDITION U/S.43B R.W.S. 36(1)(VA) OF THE A CT. 9. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE M ATERIAL AVAILABLE ON RECORD WE ARE OF THE OPINION THAT THE I SSUE INVOLVED IN THE PRESENT CASE IS NO MORE RES INTEGRA AND IS COVERED BY TH E 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(2 4)(X) AS WELL AS 43B OF THE ACT AND IT HAS BEEN HELD THAT THE AMENDMEN T WAS CURATIVE IN NATURE AND APPLICABLE RETROSPECTIVELY WITH EFFECT F ROM APRIL 1, 1988. 10. IN CIT VS. AIMIL LTD. (2010) 321 ITR 508 (DEL.) THEIR LORDSHIPS WHILE OBSERVING THAT THE ASSESSEE HAS DEPOSITED EMPLOYERS CONTRIBUTION AS WELL AS EMPLOYEES CONTRIBUTION TOWARDS P F AND ESIC AFTER THE DUE DATE, AS PRESCRIBED UNDER THE RELEVANT A CT/RULE BUT BEFORE THE DUE DATE FOR FILING THE RETURN UNDER THE INCOME TAX ACT HAVE ITA NO.1221 & 22/M/10 A.Y:00-01 & 03-04 4 HELD THAT NO DISALLOWANCE COULD BE MADE IN VIEW OF TH E PROVISIONS OF SEC.43B AS AMENDED BY THE FINANCE ACT, 2003. 11. IN VIEW OF THE ABOVE LEGAL POSITION AND IN ABSENCE OF ANY CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE WE A RE OF THE VIEW THAT THE PAYMENTS OF PF, ESIC, LABOUR WELFARE FUND AND GROUP GRATUITY FUND MADE BY THE ASSESSEE AFTER THE DUE DATE A S PRESCRIBED UNDER THE RELEVANT ACT/RULE BUT BEFORE THE DUE DATE OF FILING OF RETURNS UNDER THE INCOME TAX ACT ARE ALLOWABLE AND ACCORDINGLY WE DIRECT THE ASSESSING OFFICER TO ALLOW THE SAME AFTER DUE VERIFICATIO N. THE COMMON GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT ASSESSEE'S APPEALS STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.11.2010. SD/- SD/- ( R.S. SYAL ) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.11.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.