ACIT, Circle-14(1), Kolkata, Kolkata V. M/s Ambuja Reality Development Limited, Kolkata

ITA 1804/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1537 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: D S DAMLE
• Keywords: Question of law
• Section: 14A

Judgement Text

1 ITA NO.1804/KOL/2016 AMBUJA REALITY DEVELOPMENT LTD.., AY- 2012-13 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VARKEY, JM] I.T.A. NO. 1804/KOL/2016 ASSESSMENT YEAR: 2012-13 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-14(1), KOLKATA. VS. M/S. AMBUJA REALITY DEVELOPMENT LTD. (PAN: AAFCA4593G) APPELLANT RESPONDENT DATE OF HEARING 25.01.2018 DATE OF PRONOUNCEMENT 14.02.2018 FOR THE APPELLANT SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, SR. DR FOR THE RESPONDENT SHRI D. S. DAMLE, FCA ORDER PER SHRI A.T.VARKEY, JM THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDE R OF LD. CIT(A)-5, KOLKATA DATED 26.07.2016 FOR AY 2012-13. 2. GROUND NO. 1 OF THE REVENUES APPEAL READS AS UNDER: 1. WHETHER ON THE BASIS OF FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT(A) ERRED IN NOT CONSIDERING THE PROVISION OF SECTION 36(1)(VA) AND THEREBY DELETING THE ADDITION MADE UNDER SECTION 36(1)(VA) OF THE INCOME TAX ACT, 1961 . 3. BRIEF FACTS OF THE CASE ARE THAT THE AO MADE THE DISALLOWANCE OF RS.3,30,487/- BY INVOKING SEC. 36(1)(VA) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON ACCOUNT OF MAKING PAYMENT FOR THE EMPLOYEES PF AFT ER THE DUE DATE. ON APPEAL, THE LD. CIT(A) DELETED THE DISALLOWANCE ON THE GROUND THAT THE CONTRIBUTION WAS CLAIMED TO HAVE 2 ITA NO.1804/KOL/2016 AMBUJA REALITY DEVELOPMENT LTD.., AY- 2012-13 BEEN DEPOSITED BEFORE THE DUE DATE AS PROVIDED U/S. 139(1) OF THE ACT FOR FILING RETURN. AGGRIEVED, REVENUE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE EMPLOYEES PF PAYMENTS ARE WITHIN THE DUE DATE OF FILING OF RETURN OF INCOME BY THE ASSESSEE U/S. 139(1) OF THE ACT AND O NCE THESE PAYMENTS ARE WITHIN THE SAID DUE DATE, THE ISSUE IS COVERED BY THE JUDGMENT OF J URISDICTIONAL 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 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 CA SE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD., WE FIND THAT THE SUPREME COURT IN T HE AFORESAID CASE HAS HELD THAT 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 REQUIRED TO BE APPLIED RE TROSPECTIVELY 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. WE NOTE THAT THE ISSUE BEFORE US IS NO LONGER RES I TEGRA BECAUSE IT HAS BEEN DECIDED BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF VI JAY SHREE LTD. SUPRA, THAT IN CASE THE ASSESSEE REMITTED THE PF ON OR BEFORE THE DUE DATE OF FILING OF RETURN U/S. 139(1) OF THE ACT, DEDUCTION IN RESPECT TO THE REMITTED AMOUNT OF PF D EDUCTED ON ACCOUNT OF EMPLOYEES CONTRIBUTION BEFORE DUE DATE OF FILING OF RETURN U/ S. 139(1) OF THE ACT, HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHICH WE UPHOLD AND, THEREFORE, WE DISMISS THIS GROUND OF APPEAL OF REVENUE. 5. GROUND NO. 2 OF REVENUES APPEAL IS AS UNDER: 2. WHETHER ON THE BASIS OF FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE MADE U/S. 14A READ WITH R ULE 8D(2)(II) AND RULE 8D(2)(III) OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE FINDIN GS AND OBSERVATIONS OF THE AO. 3 ITA NO.1804/KOL/2016 AMBUJA REALITY DEVELOPMENT LTD.., AY- 2012-13 6. BRIEF FACTS OF THE CASE ARE THAT THE AO DISALLOW ED THE EXPENSES OF RS.75,49,934/- BY INVOKING SEC. 14A READ WITH RULE 8D OF THE INCOME T AX RULES, 1962. ON APPEAL, THE LD. CIT(A) DELETED THE DISALLOWANCE BY RELYING ON THE D ECISIONS OF CIT VS. CORTECH ENERGY PVT. LTD. 223 TAXMAN 130 AND REI AGRO LTD. VS. DCIT 144 ITD 141 ON THE GROUND THAT AS NO DIVIDEND WAS EARNED DISALLOWANCE U/S. 14A OF THE AC T READ WITH RULE 8D OF THE RULES IS NOT CALLED FOR. AGGRIEVED, REVENUE IS BEFORE US. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE LD. CIT(A) RELYING ON THE D ECISIONS IN THE CASE OF CORTECH ENERGY PVT. LTD. (SUPRA) AND REI AGRO LTD. (SUPRA) DELETED THE DISALLOWANCE OF EXPENSES OF RS.75,49,934/- BY OBSERVING AS UNDER: .. AS REGARDS THE CLAM THAT RULE 8D/14A APPLIES ONLY IN RESPECT OF SHARES WHICH YIELDED DIVIDEND INCOME, THE CITED DECISIONS DO SEEM TO FAV OUR THE APPELLANT. AS NO DIVIDEND IS CLAIMED TO HAVE BEEN EARNED DISALLOWANCE U/S. 14A/R ULE 8D(2)(II) IS NOT CALLED FOR IN VIEW OF THE ABOVE DECISIONS. 8. WE FIND THAT THE FACTUAL FINDING AS RECORDED BY THE LD. CIT(A) WAS NOT CONTROVERTED BY THE LD. DR BEFORE US BY PROVIDING ANY MATERIAL, THEREFORE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE IN THE AFORESAID ORDER O F THE LD. CIT(A) AND HENCE, THE SAME IS HEREBY CONFIRMED. THIS GROUND OF APPEAL OF REVENUE IS, THEREFORE, DISMISSED. 9. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 14.02.20 18 SD/- SD/- (J. SUDHAKAR REDDY) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14TH FEBRUARY, 2018 JD.(SR.P.S.) 4 ITA NO.1804/KOL/2016 AMBUJA REALITY DEVELOPMENT LTD.., AY- 2012-13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT, CIRCLE-14(1), KOLKATA. 2 RESPONDENT M/S. AMBUJA REALITY DEVELOPMENT LTD. , ECOSPACE BUSINESS PARK, BLOCK-4B, 6 TH FLOOR, PREMISES NO. IIF/11, ACTION AREA-II, NEW TOWN, KOLKATA-700 156. 3. THE CIT(A) KOLKATA 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY