J.R.K. SEA FOODS P. LTD, MUMBAI V. ITO 4(2)(4), MUMBAI

ITA 1701/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48381 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR
• Assessee Lawyers: N M PORWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH BEFORE SHRI R.V.EASWAR (PRESIDENT) & SHRI T.R.SOOD, ACCOUNTANT MEMBER I.T.A.NO.1701/MUM/2010 A.Y 2003-04 M/S. J.R.K. SEA FOODS PVT. LTD., 140, CAVAL CROSS LANE, NO. 7 GAIWADI, KALBADEVI ROAD, MUMBAI 400 002. PAN: AAACJ 1970 D VS. THE INCOME TAX OFFICER 4 (2)(4), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. N.M.PORWAL. RESPONDENT BY : SMT. VANDANA SAGAR. O R D E R PER T.R.SOOD, AM: IN THIS APPEAL ASSESSEE HAS RAISED VARIOUS GROUNDS , OUT OF WHICH GROUND NO.1 WAS NOT PRESSED BEFORE US AND, THEREFOR E, SAME IS DISMISSED AS NOT PRESSED. THE OTHER GROUNDS ARE AS UNDER: 2. THE LD. CIT[A] ERRED IN CONFIRMING THE ADDITION OF ` `` ` .1,01,070/- TOWARDS EMPLOYERS CONTRIBUTION TO PROV IDENT FUND AND ` `` ` .1,03,368/- TOWARDS EMPLOYEES CONTRIBUTION TO PROVIDENT FUND. THE APPELLANT COMPANY RELIES ON THE HON'BLE SUPREME COURT JUDGMENT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306 [S.C}. 3. THE LD. CIT[A] ERRED IN CONFIRMING THE DISALLOW ANCE OF DEDUCTION BY THE ASSESSING OFFICER U/S.80HHC IN TH E LIGHT OF HON'BLE ITAT MUMBAI SPECIAL BENCH JUDGMENT IN THE C ASE OF TOPMAN EXPORTS VS. ITO 318 ITR 87 (S.B.)(MUM.) 2. GROUND NO.2 : THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE REGARDING DEDUCTION OF LATE PAYMENT OF PR OVIDENT FUND IS NOW COVERED BY THE DECISION OF THE HON'BLE SUPREME COUR T IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. [319 ITR 306]. ON THE OTHER HAND, LD. DR 2 CONTENDED THAT THIS ISSUE DOES NOT EMANATE FROM THE ORDER OF THE CIT[A]. 3. IN THE REJOINDER, LD. COUNSEL OF THE ASSESSEE RE FERRED TO PARA 1.2 OF THE CIT[A]S ORDER WHEREIN A MENTION HAS BEE N MADE ABOUT THIS ISSUE. IN ANY CASE, OTHERWISE THIS BEING A LEGAL IS SUE MAY BE TREATED AS AN ADDITIONAL GROUND. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THE ISSUE REGARDING DISALLOWANCE ON ACCOUNT OF LATE PAYMENT O F PROVIDENT FUND IS OF LEGAL NATURE AND EVEN IF IT WAS NOT RAISED BEFOR E THE CIT[A], THE SAME COULD HAVE BEEN RAISED BEFORE US AS THE FACTS RELATING TO THE SAME ARE ALREADY ON RECORD. THEREFORE, WE ADMIT THI S GROUND AS AN ADDITIONAL GROUND. FURTHER, THE HON'BLE SUPREME COU RT IN THE CASE OF CIT VS. ALOM EXTRUSIONS [SUPRA] HAS CLEARLY HELD TH AT OMISSION OF THE SECOND PROVISO TO SEC.43B WOULD OPERATE RETROSPECTI VELY WHICH MEANS EVEN IF THE PAYMENTS HAVE BEEN MADE LATE BUT THE SA ME HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN, T HEN SAME ARE ALLOWABLE. THEREFORE, WE REMAND THIS ISSUE TO THE F ILE OF THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE DATE PAYMEN TS AND THEN ALLOW THE PAYMENTS ON ACCOUNT OF PROVIDENT FUND, IF THE SAME HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN 5. GROUND NO.3 : THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THOUGH IN THE GROUND ASSESSEE HAS RELIED ON THE DEC ISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO [318 ITR 87], BUT IN THE MEAN TIME THIS ISSUE HAD ALREADY BE EN DECIDED BY THE 3 HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KA LPATARU COLOUR & CHEMICAL 328 ITR 461. THEREFORE, FOLLOWING THAT ISS UE THE ISSUE MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER . 6. ON THE OTHER HAND, LD. DR SUBMITTED THAT THIS IS SUE WAS ALSO NOT RAISED BEFORE THE ASSESSING OFFICER OR THE CIT[A] AND FROM THE RECORDS IT IS NOT CLEAR WHETHER ASSESSEE HAD MADE ANY CLAIM IN THIS RESPECT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT IN THE ASSESSMENT ORDER ITSELF THERE IS NO DISCUSSI ON REGARDING CLAIM ON ACCOUNT OF DEPB LICENSES. FURTHER NO GROUND WAS TAK EN BEFORE THE CIT[A] IN THIS RESPECT. SINCE NO EVIDENCE HAS BEEN FILED BEFORE US WHETHER ANY CLAIM WAS MADE ON ACCOUNT OF DEPB, WE A RE UNABLE TO ENTERTAIN THIS GROUND. WE CANNOT TREAT THIS EVEN AS ADDITIONAL GROUND BECAUSE THE BASIC FACTS REGARDING THIS ISSUE ARE NO T AVAILABLE ON THE RECORDS AND, ACCORDINGLY, WE DISMISS THIS GROUND. 8. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 15/4/2011. SD/- SD/- (R.V.EASWAR) (T.R.SOOD) PRESIDENT ACCOUNTANT MEMBER MUMBAI: 15/4/2011. P/-* 4