DCIT, Circle - 12, Kolkata, Kolkata V. M/s. Bengal Chemicals & Pharmaceuticals Ltd., Kolkata

ITA 1680/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9423 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 26-08-2010
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK
• Assessee Lawyers: V N PUROHIT
• Section: 43B; 28; 139

Judgement Text

1 , , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , , , , , SMT. DIVA SINGH, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ C.D. RAO, ACCOUNTANT MEMBER % % % % / ITA NO . 1680/KOL/2010 &' () / ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) DCIT, CIRCLE-12, KOLKATA VERSUS (-.+,/ RESPONDENT ) M/S. BENGAL CHEMICALS & PHARMACEUTICALS LTD. (PAN: AABCB 5107F) +, / 0 #/ FOR THE APPELLANT: SHRI A.K.PRAMANICK -.+, / 0 # / FOR THE RESPONDENT: SHRI V.N.PUROHIT #1 / ORDER ( . .. .!' !'!' !'. .. . ) #$ PER SHRI C.D.RAO, A.M . THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE C.I.T.(A)- XXXII, KOLKATA DATED 20.05.2010 FOR THE ASSESSMENT YEAR 2005-06. 2. IN THIS APPEAL, THE ONLY ISSUE RAISED BY THE REV ENUE IS RELATING TO DELETION OF EMPLOYEES CONTRIBUTION TO P.F. AND E.S.I UNDER SECT ION 43B TAKING IT T BE EMPLOYERS CONTRIBUTION. 3. AT THE TIME OF HEARING BEFORE US, THE LD. D.R. R ELIED ON THE ORDERS OF THE ITAT, KOLKATA BBENCH IN ITA NO.1255/KOL/2010 WHEREIN TH IS TRIBUNAL CONSIDERED ALL THE CASES ON THIS ISSUE AND CONCLUDED THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U /S 36(1)(VA) OF THE EMPLOYEES CONTRIBUTION TO PROV IDENT FUND WHICH WAS PAID AFTER THE DUE DATE AS SPECIFIED IN EXPLANATION TO SECTION 36(1)(VA) OF THE ACT AS SECTION 43B CANNOT BE PRESSED INTO SERVICE BECAUSE SECTION 43B COMES INTO PLAY ONLY WHEN A DEDUCTION IS OTHERWISE ALLOWABLE UNDER THE INCOM E TAX ACT . 2 4. ON THE OTHER HAND, THE LD. COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, HAS SUBMITTED THAT THE HONBLE SUPREME COURT IN THE CAS E OF CIT-VS- ALOM EXTRUSIONS LTD. REPORTED IN 319 ITR 306 HAS CONSIDERED THIS IS SUE AND AFFIRMED THE DECISION IN THE CASE OF CIT-VS- SABARI ENTERPRISE REPORTED IN 213 C TR 269 (KAR) AND VALUED THE RATIO LAID DOWN IN ALLIED MOTORS PVT. LTD. REPORTED IN 22 4 ITR 677. THEREFORE, HE REQUESTED TO UPHOLD THE ACTION OF THE LD. CIT(A). 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, WE ARE UNABLE TO ACCEPT THE CO NTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ORDER OF THE HONBLE SUPREME COUR T IN THE CASE OF ALOM EXTRUSIONS IS NOT ON THE ISSUE OF EMPLOYEES CONTRIBUTION. ON THE OTHER HAND, IT IS ON THE EMPLOYERS CONTRIBUTION AND RELATING TO THE SECOND PROVISO TO SECTION 43B AND THE AMENDMENT OF THE FIRST PROVISO TO SECTION 43B OF TH E ACT BY THE FINANCE ACT, 2003 WHEREAS IN ASSESSEES CASE THE UNDISPUTED FACT IS T HAT THE ADDITIONS MADE BY THE AO ARE UNDER THE PROVISIONS OF SECTION 36(1)(VA). SINCE TH IS ISSUE HAS BEEN DECIDED BY THIS TRIBUNAL IN ITA NO.1255/KOL/2010 EXHAUSTIVELY, WE F IND NO REASON TO DEVIATE FROM THE VIEW TAKEN BY US IN ITA NO.1255/KOL/10 ON 19.11.201 0. THE RELEVANT PARTICULARS OF THE ABOVE ORDER ARE AS UNDER: 5. DURING THE COURSE OF HEARING, THE LEARNED D.R. SUBMITTED THAT SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE ACT PRO VIDES THAT DUE DATE OF PAYMENT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUN D AND IF IT IS NOT PAID WITHIN DUE DATE , THE SAME CANNOT BE ALLOWED AS DED UCTION IF IT IS PAID BELATEDLY. LEARNED D.R. SUBMITTED THAT SPECIAL BENCH, ITAT IN THE CASE OF ITC LTD. (SUPRA) HAS HELD THAT THE PROVISIONS OF SECTION 43B OF THE ACT WILL NOT APPLY IN RESPECT OF PAYMENT OF EMPLOYEES CONTRIBUTION TO PR OVIDENT FUND. LEARNED D.R. FURTHER SUBMITTED THAT THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF VINAY CEMENT LTD. (SUPRA) DEALS WITH THE PROVISIONS OF SECTION 43B OF THE ACT AND IN RESPECT OF EMPLOYEES CONTRIBUTION TO PROVID ENT FUND, THE PROVISIONS OF SECTION 43B DOES NOT APPLY. HE FURTHER SUBMITTED TH AT THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF AIMIL LTD.( SUPRA) HAS ALSO BEEN DECIDED BY FOLLOWING THE DECISION OF VINAY CEMENT LTD.(SUPRA). HE FURTHER 3 SUBMITTED THAT THE ONLY ISSUE DECIDED ON THOSE APP EALS WERE WHETHER AMOUNT PAID ON ACCOUNT OF P.F. AFTER DUE DATE ARE ALLOWAB LE IN VIEW OF SECTION 43B READ WITH SECTION 36(1)(VA) OF THE ACT. HE FURTHER SUBMITTED THAT IT IS NOWHERE DECIDED AS TO WHETHER BELATED PAYMENT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND PAID IS ALLOWABLE IF IT IS PAID AFTER DUE D ATE BUT BEFORE DUE DATE OF FILING OF RETURN. 6. ON THE OTHER HAND, LEARNED A.R. SUPPORTED THE OR DER OF THE LEARNED C.I.T(A) AND ALSO PLACED RELIANCE ON THE AFORESAID DECISIONS AS RELIED BEFORE THE LEARNED C.I.T(A). BESIDES ABOVE, THE LEARNED A.R A LSO REFERRED THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS P.M.ELECTRONICS LTD. AIT 2008 397 H.C. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES AND HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO C ONSIDERED THE CASES CITED BY THE LEARNED REPRESENTATIVES OF THE PARTIES IN SUPPO RT OF THEIR SUBMISSIONS. WE OBSERVE THAT THERE IS NO DISPUTE TO THE FACT THAT A SSESSEE HAD PAID EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AFTER THE DUE DATE. WE OBSERVE THAT THE ABOVE ISSUE AS TO WHETHER THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND IS ALSO SUBJECT TO THE PROVISIONS OF SECTION 43B OF THE ACT OR NOT. IN THIS RESPECT WE CONSIDER IT NECESSARY TO STATE THE RELEVANT PROVISIONS OF SECT ION 36(1)(VA) AND RELEVANT CLAUSES OF SECTION 43B OF THE ACT WHICH ARE AS UN DER : 36(1) THE DEDUCTIONS PROVIDED FOR IN THE FOLLOWIN G CLAUSES SHALL BE ALLOWED IN RESPECT OF THE MATTERS DEALT WITH THEREIN , I N COMPUTING THE INCOME REFERRED TO IN SECTION 28 - (I) . (IA) . (IB) . (IIA) . (III) . (IIIA) (VA) ANY SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EMPLOYEES TO WHICH THE PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) OF S ECTION 2 APPLY, IF SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE. 4 EXPLANATION - FOR THE PURPOSES OF THIS CLAUSE, DUE DATE MEANS THE DATE BY WHICH THE ASSESSEE IS REQUIRED AS AN EMPLOYER TO CR EDIT AN EMPLOYEES CONTRIBUTION TO THE EMPLOYEES ACCOUNT IN THE RELE VANT FUND UNDER ANY ACT, RULE, ORDER OR NOTIFICATION ISSUED THERE UNDER OR UNDER ANY STANDING ORDER, AWARD , CONTRACT OF SERVICE OR OTHERWISE. 43B. NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHE R PROVISION OF THIS ACT, A DEDUCTION OTHERWISE ALLOWABLE UNDER THIS ACT IN RES PECT OF - A B. ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER B Y WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR GRATUI TY FUND OR ANY OTHER FUND FOR THE WELFARE OF EMPLOYEES, OR C. D. E .. F.. SHALL BE ALLOWED (IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED BY THE ASSESSEE ACCORDING TO THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY HIM) ONLY IN COMPUTING THE IN COME REFERRED TO IN SECTION 28 OF THAT PREVIOUS YEAR IN WHICH SUCH SUM IS ACTUA LLY PAID BY HIM: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY IN RELATION TO ANY SUM WHICH IS ACTUALLY PAID BY THE ASSESSEE ON OR BE FORE THE DUE DATE APPLICABLE IN HIS CASE FOR FURNISHING THE RETURN OF INCOME UND ER SUB-SECTION (1) OF SECTION 139 IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE LI ABILITY TO PAY SUCH SUM WAS INCURRED AS AFORESAID AND THE EVIDENCE OF SUCH PAYM ENT IS FURNISHED BY THE ASSESSEE ALONG WITH SUCH RETURN. 8. FROM THE ABOVE IT EMERGES THAT THE TERM DUE D ATE AS APPEARING IN SECTION 36(1)(VA) READ WITH EXPLANATION SPECIFIES THE DUE DATE AS THE DATE BY WHICH THE ASSESSEE IS REQUIRED AS AN EMPLOYER TO CREDIT AN EMPLOYEES CONTRIBUTION UNDER THE EMPLOYEES A/C TO THE RELEVANT FUND. AS REGARDS THE TERM DUE DATE AS APPEARING IN SECTION 36(1)(VA), THE EXPLANATION TO SECTION 36(1)(VA) SPECIFIES THE DUE DATE AS THE DATE BY WHICH THE ASSESSEE IS RE QUIRED AS AN EMPLOYER TO CREDIT AN EMPLOYEES CONTRIBUTION TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND UNDER ANY ACT, RULE, ORDER OR NOTIFICATION ISSUED T HERE-UNDER OR UNDER ANY STANDING ORDER, AWARD, CONTRACT OF SERVICE OR OTHER WISE. THE TERM DUE DATE AS SPECIFIED IN THE EXPLANATION TO SECTION 36(1)(VA) D OES NOT REFER TO THE DUE DATE FIXED FOR FILING THE RETURN OF INCOME U/S 139(1). H ENCE THE DUE DATE AS FIXED FOR FILING THE RETURN OF INCOME U/S 139(1) CANNOT B E READ INTO THE EXPLANATION TO SECTION 36(1)(VA). THE DUE DATE FOR CREDITING ANY SUM RECEIVED BY THE ASSESSEE 5 FROM HIS EMPLOYEES AS CONTRIBUTIONS TOWARDS ANY PRO VIDENT FUND OR SUPERANNUATION FUND OR ANY FUND FOR THE WELFARE OF THE EMPLOYEES BY THE EMPLOYER-ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND OR FUNDS MUST BE THE ONE SPECIFIED IN THE EXPLANATION TO SECTION 36(1)(VA) AND NOT THE DUE DATE FOR FILING THE RETURN OF INCOME UNDER SECTION 139(1). IN THE CASE BEFORE US THERE IS NO DISPUTE THAT THE ASSESSEE COMPANY HA S NEITHER CREDITED THE IMPUGNED CONTRIBUTION RECEIVED BY IT FROM ITS EMP LOYEES TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND NOR IT HAS DONE SO O N OR BEFORE THE DUE DATE SPECIFIED IN THE EXPLANATION TO SECTION 36(1)(VA) AND HENCE WE ARE OF THE CONSIDERED VIEW THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION CANNOT SUCCEED. FURTHER SECTION 43B, WE ARE OF THE CONSIDERED VIE W, DOES NOT APPLY IN RESPECT OF THE EMPLOYEES CONTRIBUTION FOR THE FOLLOWING REA SONS : (I) SECTION 43B OPENS WITH A NON OBSTANTE CLAUSE WH ICH MEANS THAT IT CONTROLS THE OPERATION OF OTHER PROVISIONS OF THE INCOME-TAX ACT IN THAT SECTION 43B WILL HAVE OVERRIDING EFFECT NOTWITHSTANDING OTHER PROVIS IONS UNDER WHICH A DEDUCTION MAY OTHERWISE BE ALLOWABLE. (II) THE OPENING WORDS OF SECTION 43B MAKE IT CLEAR THAT THE SAID SECTION WOULD HAVE OVERRIDING EFFECT AND APPLY ONLY WHEN A DEDUCT ION IS OTHERWISE ALLOWABLE UNDER THE INCOME-TAX ACT. IN OTHER WORDS, THE VERY APPLICABILITY OF THE NON- OBSTANTE CLAUSE WOULD COME INTO PLAY ONLY WHEN A DE DUCTION IS OTHERWISE ALLOWABLE UNDER THE INCOME-TAX ACT. THUS SECTION 43 B CANNOT BE PRESSED INTO SERVICE TO ALLOW A DEDUCTION WHICH IS OTHERWISE NOT ALLOWABLE UNDER THE INCOME- TAX ACT INCLUDING SECTION 36(1)/(VA) THEREOF. IN O RDER TO AVAIL THE BENEFLT OF SECTION 43B UPON ACTUAL PAYMENT, THE ASSESSEE MUST SHOW THAT THE DEDUCTION CLAIMED BY IT U/S 43B IS OTHERWISE ALLOWABLE UNDER THE PROVISIONS OF THE INCOME- TAX ACT INCLUDING SECTION 36(1)/(VA) THEREOF. (III) SECTION 43B BARS DEDUCTION, WHICH IS OTHERWIS E ALLOWABLE UNDER THE INCOME-TAX ACT, OF ANY SUM REFERRED TO IN CLAUSES ( A) TO (F) UNLESS IT IS ACTUALLY PAID. THUS THE FACTUM OF ACTUAL PAYMENT OF ANY SUM REFERRED TO IN CLAUSES (A) TO (F) IS RELEVANT ONLY WHEN THE DEDUCTION IS OTHERWIS E ALLOWABLE UNDER THE INCOME- TAX ACT. THERE ARE SEVERAL PROVISIONS IN THE INCOME -TAX ACT, WHICH SET OUT THE CONDITIONS FOR THE ALLOWABILITY OF DEDUCTIONS OF TH OSE VERY SUMS WHICH ARE REFERRED TO IN SECTION 43B. THOSE PROVISIONS WOULD BE RENDERED OTIOSE IF A VIEW WAS TO BE TAKEN THAT DEDUCTIONS OF THE AFORESAID SU MS WOULD BE ALLOWED AS AND WHEN THEY ARE ACTUALLY PAID IRRESPECTIVE OF THE FAC T THAT THEY ARE NOT OTHERWISE ALLOWABLE UNDER THE INCOME-TAX ACT. THE PLAIN AND UNAMBIGUOUS LANGUAGE USED IN SECTION 43B MAKES IT ABSOLUTELY CLEAR THAT THE ALLOWABILITY OF DEDUCTION OF ANY SUM REFERRED TO IN CLAUSES (A) TO (F) UPON A CTUAL PAYMENT IS RESTRICTED TO 6 THOSE DEDUCTIONS ONLY, WHICH ARE OTHERWISE ALLOWABL E UNDER THE INCOME-TAX ACT. THUS THE FACTUM OF ACTUAL PAYMENT BY ITSELF IS NOT SUFFICIENT TO SUCCESSFULLY CLAIM A DEDUCTION U/S 43B, WHICH IS OTHERWISE NOT ALLOWAB LE UNDER THE INCOME-TAX ACT. IN OTHER WORDS, ALL THOSE DEDUCTIONS, WHICH ARE OTH ERWISE NOT ALLOWABLE UNDER THE INCOME-TAX ACT, CANNOT BE ALLOWED EVEN ON ACTUA L PAYMENT U/S 43B. (IV) THE PROVISO TO SECTION 43B CARVES OUT AN EXCEP TION AND ALLOWS DEDUCTION IN RESPECT OF ANY SUM REFERRED TO IN CLAUSES (A) TO (F ) WHICH IS ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE FOR FURNISHING T HE RETURN OF INCOME U/S 139(1) IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE LIABIL ITY TO PAY SUCH SUM WAS INCURRED. HOWEVER, THE PROVISO APPLIES ONLY TO THOS E MATTERS WHICH ARE SPECIFICALLY REFERRED TO IN SECTION 43B TO WHICH IT HAS BEEN ADDED. PROVISO TO SECTION 43B CANNOT THEREFORE BE MADE APPLICABLE TO THOSE DEDUCTIONS WHICH ARE OTHERWISE NOT ALLOWABLE UNDER THE INCOME-TAX ACT. 9. FROM THE ABOVE WE ARE OF THE VIEW THAT A CLAIM/ DEDUCTION WHICH IS OTHERWISE NOT ALLOWABLE U /S 36(1)(VA) OR FOR THAT MATTER AN Y OTHER PROVISION OF THE INCOME TAX ACT CAN NEITHER BE CONSIDERED NOR IS ALLOWED U/S 43B. THE OPENING WORDS OF SECTION 43B ,NAMELY NOTWITHSTANDING ANYTHING CO NTAINED IN ANY OTHER PROVISION OF THIS ACT A DEDUCTION OTHERWISE ALLOWA BLE UNDER THIS ACT .. MAKE IT AMPLY CLEAR THAT SECTION 43B COM ES INTO PLAY ONLY WHEN DEDUCTION IS OTHERWISE ALLOWABLE UNDER THE INCOME TAX ACT . THE PURPOSE OF SECTION 43B IS I) TO BAR THE DEDUCTION OF THE SU MS REFERRED TO THEREIN UNLESS THEY ARE ACTUALLY PAID AND II) NOT TO ALLOW DEDUC TION WHICH IS OTHERWISE NOT ALLOWABLE UNDER THE INCOME TAX ACT. THEREFORE, SE CTION 43B CANNOT BE PRESSED INTO SERVICE IN A CASE LIKE THE ONE BEFORE US WHERE DEDUCTION IS NOT OTHERWISE ALLOWABLE U /S 36(1)(VA). MOREOVER, SECTION 43B IS A GENERAL PROVISION WHICH MERELY BARS DEDUCTION OF SPECIFIED SUMS UNLESS THE Y ARE ACTUALLY PAID AND WHEREAS PROVISIONS OF SECTION 36(1)(VA) SPECIFICALL Y DEAL WITH DEDUCTION IN RESPECT OF PAYMENT OF EMPLOYEES CONTRIBUTION TO THE PROVIDENT FUND. THEREFORE, THE PROVISIONS OF SECTION 36(1)(VA), BEI NG SPECIAL PROVISIONS ENACTED TO DEAL WITH SPECIFIC MATTER WOULD, IN OUR VIEW, P REVAIL OVER THE GENERAL PROVISIONS OF SECTION 43B ON THE PRINCIPLE THAT A GENERAL CLAUSE DOES NOT EXPLAIN TO THOSE THINGS THAT HAVE BEEN PREVIOUSLY PROVIDED FOR SPECIFICALLY. 7 10. WE HAVE GONE THROUGH THE DECISIONS (CITED S UPRA) IN WHICH IT IS HELD THAT EMPLOYEES CONTRIBUTION TO PROVIDENT FUND WOULD BE ELIGIBLE FOR DEDUCTION IF IT IS PAID BEFORE DUE DATE PRESCRIBED U /S 139(1) FOR FILING THE RETURN OF INCOME. HOWEVER, WE DO NOT FIND ANY SUCH OBSERVATION IN TH E SAID CASES (CITED SUPRA) THAT DEDUCTION U /S 43B WOULD HAVE TO BE ALLOWED EVEN IF THE DEDUCTIONS IN RESPECT OF WHICH PAYMENTS HAVE BEEN MADE IN TERMS OF SECTION 43B ARE OTHERWISE NOT ALLOWABLE UNDER THE INCOME TAX ACT. IN FACT IT HAS NOT EVEN THE QUESTION RAISED IN THOSE DECISIONS AS TO WHETHER DE DUCTION WHICH IS NOT OTHERWISE ALLOWABLE UNDER THE INCOME TAX ACT, COULD AT ALL BE ALLOWED ON PAYMENT BASIS U /S 43B. IT IS WELL-SETTLED PRINCIPL E THAT A JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS IN THE JUDGMENT HAV E TO BE CONSTRUED IN THE LIGHT OF THE QUESTION RAISED BEFORE THE COURT. IT IS THE JUDICIAL PRINCIPLE FOUND UPON READING THE JUDGMENT AS A WHOLE IN THE LIGHT OF TH E QUESTION RAISED BEFORE THE COURT WHICH FORMS PRECEDENT AND NOT PARTICULAR WORDS OR PHRASES. 11. IN VIEW OF THE ABOVE WE HOLD THAT THE ASSESS EE IS NOT ENTITLED TO DEDUCTION U /S 36(1)(VA) OF THE EMPLOYEES CONTRIBUTION TO PR OVIDENT FUND WHICH WAS PAID AFTER THE DUE DATE AS SPECIFIED IN EXPLANATION TO SECTION 36(1)(VA) OF THE ACT AS SECTION 43B CANNOT BE PRESSED INTO SERVICE BECAUSE SECTION 43B COMES INTO PLAY ONLY WHEN A DEDUCTION IS OTHERWISE ALLOWABLE UNDER THE INCOME TAX ACT. HENCE, WE CONFIRM THE ACTION OF THE AO BY REVERSING ORDER OF THE LEARNED C.I.T(A) AND ACCORDINGLY ALLOW GROUND NO. 1 TAKEN BY THE DEPARTMENT. 5.1 RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE T HE ORDERS OF THE LD. CIT(A) AND RESTORE THAT OF THE AO. 6 IN THE RESULT, THE REVENUES APPEAL IS ALLOWED. #1 2 3& 4 5 THIS ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY, 2011. SD/- SD/- , , , , , DIVA SINGH, JUDICIAL MEMBER. . .. .!' !'!' !'. .. . , #$ C.D. RAO, ACCOUNTANT MEMBER ( (( ('$ '$ '$ '$) )) ) DATE:07.01.2011 MST(SR.P.S.) 8 #1 / -6 7#6(8- COPY OF THE ORDER FORWARDED TO: 1. M/S. BENGAL CHEMICALS & PHARMACEUTICALS LTD., 6, GA NESH CHANDRA AVENUE, KOLKATA 700 013. 2 DCIT, CIRCLE-12, KOLKATA 3. THE CIT, 4. THE CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA .6 -/ TRUE COPY, #1&3/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES