DCIT 3(1), MUMBAI V. AXIS SECURITIES & SALES LTD ( FORMLERY KNOWN AS AXIS SALES LTD), MUMBAI

ITA 1719/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92786 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C TRIPURA SUNDARI
• Section: 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.1719/MUM/2013 / ASSESSMENT YEAR 2009-10 DY.CIT,CIR.3(1), ROOM NO.607, 6 TH FLOOR, AAYKAR BHAVAN, MUMBAI 400020 / VS. M/S. AXIS SECURITIES & SALES LTD., (FORMERLY KNOWN AS AXIS SALES LTD.), 13 TH FLOOR, MAKER TOWERF CUFFE PARADE, COLABA, MUMBAI 400 005. ./ ./ PAN/GIR NO. : AAACH 1784M ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY MS. C. TRIPURA SUNDARI RESPONDENT BY NONE ! ' / DATE OF HEARING : 03/06/2015 ! ' / DATE OF PRONOUNCEMENT : 03/06/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-5, MUMBAI DATED 26/9/2012 FOR ASSESSMENT YEAR 2009- 10. GROUNDS OF APPEAL READ AS UNDER: 1. ''WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 19,78 ,561/-, MADE U/ S 43B LW.S 36(1)(VA) AND 2(24)(X) ON ACCOUNT OF DISALLOWANCE OF EMPLOYEE 'S CONTRIBUTION TO PF/ESIC/WELFARE FUND SINCE THE PAYMENTS WERE MADE AFTER THE DUE DAT ES, HOLDING THAT THE PAYMENTS HAVE BEEN MADE BEFORE FILING OF RETURN.' . / ITA NO.1719/MUM/2010 / ASSESSMENT YEAR 2009-10 2 2. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.19,78, 561/- MADE U/ S 43B R.W.S 36(1)(VA) AND 2(24)(X) WITHOUT APPRECIATING THE FACT THAT THE ASS ESSEE IS NOT ENTITLED TO DEDUCTION U/S 36(1)(VA) IN RESPECT OF EMPLOYEES CONTRIBUTION TO P F BECAUSE SECTION 43B COMES INTO PLAY ONLY WHEN A DEDUCTION IS OTHERWISE ALLOWABLE U NDER THE ACT AS HELD BY THE HON'BLE ITAT 'C' BENCH KOLKATA IN CASE OF BENGAL CHEMICAL A ND PHARMACEUTICALS LTD. (11 TAXMANN.COM)(2011).' 2. THE REVENUE IN THE PRESENT APPEAL IS CONTESTING DELETION OF DISALLOWANCE OF THE FOLLOWING AMOUNTS MADE UNDER SECTION 43B R. W. SECTION 36(1)(VA) AND 2(24)(X) OF THE INCOME TAX ACT, 1961 (THE ACT): (1)EMPLOYEES CONTRIBUTION TO PF RS. 2318/- (2) ESIC RS. 19,67,754/- (3) EMPLOYEES WELFARE FUND RS. 8509/- 3. LD. CIT(A) HAS DELETED SUCH ADDITION ON THE ARG UMENTS OF THE ASSESSEE THAT THOUGH THE PAYMENTS HAVE BEEN MADE AFTER DUE D ATE BUT THEY HAVE BEEN MADE BEFORE THE DUE DATE OF FILING THE RETURN. THE REVENUE IS AGGRIEVED. 4. NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HOW EVER, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. SINCE THE ISSUE IS COVE RED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF CIT VS. GHATGE PATIL TRANSPORTS, 368 ITR 749, WE PROCEED TO DECIDE THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE AFTER HEARING LD. DR. 5. LD. DR RELIED UPON THE ORDER PASSED BY AO. 6. WE HAVE HEARD LD. DR. THE FACT THAT PAYMENTS HA VE BEEN MADE BY THE ASSESSEE BEFORE THE DUE DATE OF FILING THE RETURN I S NOT DISPUTED BY THE REVENUE. IF IT IS SO, THEN IT CAN BE HELD THAT THE ISSUE DEC IDED BY LD. CIT(A) IS IN ACCORDANCE WITH THE AFOREMENTIONED DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GHATGE PATIL TRANSPORT (SUPRA). IN THE SAID DECISION, IT HAS BEEN HELD THAT ASSESSEE WOULD BE ENTITLED TO DEDUCT ION IN CASE CONTRIBUTION TO . / ITA NO.1719/MUM/2010 / ASSESSMENT YEAR 2009-10 3 EMPLOYEES WELFARE FUND SHOULD BE CREDITED ON OR BEF ORE THE DUE DATE OF FILING THE RETURN OF INCOME. FOR HOLDING SO THEIR LORDSHI PS OF HONBLE BOMBAY HIGH COURT HAS RELIED UPON THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF ALLOM EXTRUSION LTD., 319 ITR 306(SC). THEREFORE, WE DECLINE TO INTERFERE IN THE RELIEF GRANTED BY LD. CIT(A) AND THE APPEAL FILED B Y THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/06/2015 () * + 03/06/2015 SD/- SD/- ( , / RAJENDRA) ( . . / I.P. BANSAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( MUMBAI; * DATED 03/06/2015 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. .! ( ) / THE CIT(A)- 4. .! / CIT 5. /0 !12 , ' 12 , ( / DR, ITAT, MUMBAI 6. 3 / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI . . ./ VM , SR. PS