ACIT, CHENNAI V. Forward Shoes (India) Pvt Ltd., CHENNAI

ITA 183/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9289 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 02-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: MRS MEERA SURESH
• Section: 43B; 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . . . , . , % BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.183/MDS/2016 ( / ASSESSMENT YEAR: 2011-12) ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-2(1), CHENNAI-600 034. VS M/S. FORWARD SHOES (INDIA) PVT.LTD., 50, RAJA MUTHIAH ROAD, PERIAMET, CHENNAI - 600 003. PAN: AAACF1138M ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. P.RADHAKRISHNAN, JCIT /RESPONDENT BY : MRS. MEERA SURESH, FCA /DATE OF HEARING : 28 TH MARCH,2016 /DATE OF PRONOUNCEMENT : 23 RD MAY, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL IS FILED BY THE REVENUE AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-6, CHENNAI DATED 01.12.2015 IN F.NO.45/CIT(A)-6/2014-15 PASSED UNDER SECTION 143 (3) R.W.S 250(6) OF THE ACT. 2. THE REVENUE HAS RAISED SEVERAL ELABORATE GROUNDS IN ITS APPEAL, HOWEVER, THE CRUX OF THE ISSUE IS THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN A LLOWING 2 ITA NO.183 /MDS/2016 THE APPEAL OF THE ASSESSEE WHERE DISALLOWANCE WAS M ADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF NON-REM ITTANCE OF THE EMPLOYERS & EMPLOYEES CONTRIBUTION TO PF A ND ESI FUND WITHIN THE DUE DATE OF PAYMENT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACT URING LEATHER SHOES AND UPPERS FILED ITS RETURN OF INCOM E FOR THE ASSESSMENT YEAR 2011-12 ON 30.09.2011 ADMITTING INC OME OF RS.22,54,500/-. SUBSEQUENTLY, THE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT WAS MADE UNDER SECTION 143(3) OF THE ACT, WHEREIN THE LEARNED ASSESSING OFFICER M ADE ADDITIONS TOWARDS NON-REMITTANCE OF EMPLOYERS AND EMPLOYEES CONTRIBUTION TO PF & ESI FUND WITHIN THE DUE DATE OF PAYMENT AND CERTAIN OTHER ADDITION. 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) RELYING ON THE VARIOUS DECISIONS OF THE H IGHER JUDICIARY ALLOWED THE APPEAL OF THE ASSESSEE IN TH E ISSUE OF ADDITION MADE ON ACCOUNT OF NON-REMITTANCE OF EMPLO YERS AND EMPLOYEES CONTRIBUTION TO PF & ESI FUND BY HOL DING THAT 3 ITA NO.183 /MDS/2016 IT WOULD SUFFICE TO MAKE SUCH REMITTANCE WITHIN THE DUE DATE OF FILING OF THE RETURN OF INCOME BY THE ASSESSEE. WHILE DOING SO, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS PLACED RELIANCE ON SEVERAL DECISIONS OF THE HIGHER JUDICIARY AND ALSO THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. INDUSTRIAL SECURITY AND INTELLIG ENCE INDIA PVT. LTD., REPORTED IN 585 & 586 OF 2015 & M.P.NO.1 OF 2015 DATED 24.07.2015. THE RELEVANT PORTION OF THE SAID ORDER IS REPRODUCED HEREIN BELOW FOR REFERENCE:- 5. WE FIND THAT THE TRIBUNAL HAS RIGHTLY RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. REPORTED IN 319 ITR 306 WHEREBY THE SUPREME COURT HELD THAT OMISSION OF SECTION PROVISO TO SECTION 43B AND AMENDMENT TO THE FIRST PROVISO BY FINANCE ACT, 2003 ARE CURATIVE IN NATURE AND ARE EFFECTIVE RETROSPECTIVELY I.E. W.E.F. 01.04.1988 I.E. THE DAT E OF INSERTION OF FIRST PROVISO. THE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL LTD. REPORTED IN 321 ITR 508 HELD THAT IF THE ASSESSEE HAD DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PF & ESI AFTER DUE DATE AS PRESCRIBED UNDER THE RELEVANT ACT, BUT BEFORE THE DUE DATE OF FILING OF RETURN UNDER THE I.T. ACT, NO DISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS OF SECTION 43B AS AMENDED BY FINANCE ACT, 2003. 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE MATERIALS AVAILABLE ON RECORD. SINCE THE LEARN ED 4 ITA NO.183 /MDS/2016 COMMISSIONER OF INCOME TAX (APPEALS) HAS FOLLOWED T HE DECISION OF THE JURISDICTIONAL HIGH COURT, WE DO NO T FIND ANY REASON TO INTERFERE WITH HIS ORDER. ACCORDINGLY, W E HEREBY CONFIRM THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) ON THIS ISSUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MAY, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 23 RD MAY, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF