ACIT, Central Circle - XVII, Kolkata, Kolkata V. M/s. REI Six Ten Retail Ltd, Kolkata

ITA 1286/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78294 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 07-09-2012
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY
• Keywords: Question of law
• Section: 43B; 143(3)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 1286/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2009-10 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. M/S. RE I SIX TEN RETAIL LTD. CENTRAL CIRCLE-XXVII, KOLKATA. (PAN: AADCR7637J) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 24.04.2014 DATE OF PRONOUNCEMENT: 24.04.2014 FOR THE APPELLANT: SHRI P. K. CHAKRABORTY, JCIT, SR . DR FOR THE RESPONDENT: SHRI RAVI TULSIYAN, CA $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), CENTRAL-II, KOLKATA IN APPEAL NO. 37/CC-XXVII/CIT(A)C-II/11-12 DATED 13.06.2012. ASSESSMENT WAS FRAMED BY ACIT, CENTRAL CIRCLE-XXVII, KOLKATA U/S. 143(3) OF THE IN COME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 200-10 VIDE HIS ORDER DATED 30.05.2011. 2. THE ONLY ISSUE IN THIS APPEAL OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDITION MADE BY AO ON ACCOUNT OF BELATED PAYME NTS OF EMPLOYEES CONTRIBUTION TO PF AND ESI MADE U/S. 36(1)(VA) READ WITH SECTION 2(24) (X) OF THE ACT BY HOLDING THAT THE AMOUNT PAID ON ACCOUNT OF EMPLOYEES CONTRIBUTION WAS BEYO ND THE DUE DATE AS PRESCRIBED IN THE RESPECTIVE ACTS IS NOT DEDUCTIBLE IN VIEW OF THE AM ENDED PROVISIONS OF SECTION 43B OF THE ACT. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE COMPA NY IS ENGAGED IN THE BUSINESS OF RUNNING RETAIL CHAIN STORES AND HAD FILED ITS RETURN OF INC OME FOR THE RELEVANT AY 2009-10 ON 29.09.2010. SUBSEQUENTLY, ASSESSMENT WAS FRAMED U/ S. 143(3) OF THE ACT THEREBY THE AO ADDED BACK THE AMOUNT OF RS.1,12,10,961/- AND RS.25,87,68 0/- OUT OF EMPLOYEES CONTRIBUTION TO PF AND ESI RESPECTIVELY. ACCORDING TO AO, THESE AMOUN TS WERE BEYOND THE DUE DATE OF RESPECTIVE ACTS AND HENCE, NOT ALLOWABLE IN TERM OF THE PROVIS IONS OF SECTION 2(24)(X) OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO NOTED THE FACTS THAT THE AMOUNTS OF 2 ITA NO.1286/K/2012 M/S.REI SIX TEN RETAIL LTD. AY:2009-10 EMPLOYEES CONTRIBUTION TO PF AND ESI WERE NOT MADE WITHIN THE DUE DATE OF RESPECTIVE ACTS BUT WERE PAID WITHIN THE DUE DATE OF FILING OF RETU RN OF INCOME U/S. 139(1) OF THE ACT. ACCORDINGLY, HE RELIED ON THE DECISION OF HONBLE J URISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M/S. VIJAY SHREE LIMITED VIDE ITAT NO. 245 OF 2 011 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 COURT 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 PROVISO TO THE SEC. 43(B) O F THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATIVE IN NATURE AND IS RE QUIRED 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 INVOKING THE AFOR ESAID 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. 4. ONCE THE ISSUE IS DECIDED BY HONBLE JURISDICTIO NAL HIGH COURT IN THE CASE OF VIJAYSHREE LTD. SUPRA, WHERE IN IT IS HELD THAT THE PF & ESI ARE PAID ON OR BEFORE THE DUE DATE OF FILING OF RETURN U/S. 139(1) OF THE ACT, DEDUCTI ON IN RESPECT TO THE AMOUNT ON WHICH PF &ESI IS SO PAID, IS ALLOWABLE. IN THE PRESENT CASE THE ASSESSEE HAS PAID THE PF & ESI BEFORE DUE DATE OF FILING OF RETURN U/S. 139(1) OF THE ACT BY THE A SSESSEE, HENCE, WE DISMISS THIS GROUND OF APPEAL OF REVENUE. 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24TH APRIL, 2014 12 '3' 4 JD.(SR.P.S.) 3 ITA NO.1286/K/2012 M/S.REI SIX TEN RETAIL LTD. AY:2009-10 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT- ACIT, CENTRAL CIRCLE-XXVII, KOLKATA 2 ./,- / RESPONDENT M/S. REI SIX TEN RETAIL LTD., 46C, C HOWRINGHEE ROAD, KOLKATA-71. 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .