ACIT, Central Circle - VII, Kolkata, Kolkata V. M/s. Vijay Shree Ltd., Howrah

ITA 1653/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54672 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Keywords: Question of law

Judgement Text

, ' , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA ( ) . . , , , , , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SRI MAHAVIR SING H, J.M.] ! ! ! ! / I.T.A NO. 1653/KOL/2010 ASSESSMENT YEAR : 2007-2008 ASSISTANT COMMISSIONER OF INCOME TAX, - VS.- VIJAY SHREE LIMITED, HOWRAH CENTRAL CIRCLE-VII, KOLKATA (PAN : AAACV 9833 B ) ( '# /APPELLANT ) ( $%'# / RESPONDENT ) FOR THE APPELLANT ( '# ) : SHRI S.K. ROY, D.R. FOR THE RESPONDENT ( $%'# ) : N O N E &' ( ) * &' ( ) * &' ( ) * &' ( ) * /DATE OF HEARING : 01.12.2011 +, ) * +, ) * +, ) * +, ) * /DATE OF PRONOUNCEMENT : 01.12.2011 - / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS), CENTRAL-I, KOLKATA DATED 24.06.2010 FOR THE ASSESSMENT YEAR 2007-08. 2. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE CAS E WAS CALLED FOR HEARING. THEREFORE, WE HAVE DECIDED TO DISPOSE OF THE APPEAL AFTER HEAR ING THE LD. D.R. AND THE MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-CO MPANY WAS A SICK INDUSTRIAL UNIT AND WAS RUNNING A JUTE MILL, NAMELY FORT WILLIAM JUTE MILL AT SHIBPUR, HOWRAH. THE MILL WAS UNDER SUSPENSION OF WORK FOR MORE THAN 2 MONTHS FROM 05.0 1.2007 TO 08.03.2008. DURING THE PERIOD, NO STAFF WAS ALLOWED TO ENTER IN MILL FOR DOING ANY ACCOUNTING WORK. THE ASSESSING OFFICER NOTICED THAT THE EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI WERE NOT DEPOSITED WITHIN THE DUE DATE TO THE APPROPRIATE AUTHORITY. HE, THEREFORE, D ISALLOWED RS.5,17,559/- ON ACCOUNT OF P.F. AND RS.2,75,086/- ON ACCOUNT OF ESI IN VIEW OF THE PROVISIONS OF SECTION 36(1)(VA) READ WITH ITA NO.1653/KOL./2010 2 SECTION 2(24)(X) OF THE ACT. LD. CIT(APPEALS) ALLOW ED THE ASSESSEES APPEAL TAKING NOTE OF THE FACT THAT THE IMPUGNED AMOUNTS WERE DULY PAID BY TH E ASSESSEE BEFORE DUE DATE OF FURNISHING OF RETURN. HE RELIED ON THE FOLLOWING DECISIONS :- (I) CIT VS.- SABARI ENTERPRISES (2008) 298 ITR 1 41 (KARNATAKA); (II) CIT VS.- ALOM EXTRUSIONS LTD. [319 ITR 306] ; 4. WE HAVE HEARD LD. D.R. AND GONE THROUGH FACTS AN D CIRCUMSTANCES OF THE CASE. WE FIND THAT THE FACTS ARE NOT DISPUTED THAT THE ASSESSEE H AD PAID EMPLOYEES CONTRIBUTION TO PF AND ESI BEFORE THE DUE DATE OF FILING OF RETURN. THIS ISSUE IS CONCLUDED BY THE DECISION OF THIS JURISDICTIONAL HIGH COURT IN THE CASE OF CIT - VS.- 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 HELD AS UNDER: AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARI NG ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF T HE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUS ION LTD., WE FIND THAT THE SUPREME COURT IN THE AFORESAID CASE HAS HELD TH AT THE AMENDMENT TO THE SECOND PROVISO TO THE SEC. 43(B) OF 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 CONTR IBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVOKING THE AFORESAID AMENDED PR OVISIONS OF SECTION 43(B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBST ANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMIS S THIS APPEAL. THE SAME ISSUE HAS ALSO BEEN DECIDED ON 21.10.2011 IN FAVOUR OF ASSESSEE BY ITAT, KOLKATA IN ITA NO. 823/KOL./2010 IN THE CASE OF DCIT VS.- TAN TIA CONSTRUCTIONS LIMITED. 5. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AND THE SAME IS UPHELD. ACCORDINGLY, GROUNDS OF APPEAL ARE DISMISSED. 6. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/ 12 /2011. & . / - 01/12/2011. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 01/ 12/ 2011 ITA NO.1653/KOL./2010 3 COPY OF THE ORDER FORWARDED TO: 1. M/S. VIJAY SHREE LIMITED, 17 & 48, R.N.R.C. GHAT RO AD, HOWRAH-2 2 ACIT, CENTRAL CIRCLE-VII, KOLKATA, 3. COMMISSIONER OF INCOME-TAX (APPEALS)- , KOLKATA 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.