DCIT COMPANY CIRCLE IV(4), CHWENNAI V. SHARP DETECTIVES P LTD., CHENNAI

ITA 193/CHNY/1999

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5376 (ITAT-CHENNAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 28-01-1999
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , ! ' # , % #& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.193/MDS/1999 ) *) / ASSESSMENT YEAR : 1995-96 THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE IV(4), CHENNAI. V. M/S SHARP DETECTIVES PVT. LTD., 7, TALUK OFFICE ROAD, LITTLE MOUNT, SAIDAPET, CHENNAI - 600 015. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : SHRI V.M. MAHIDAR, JCIT ./,- 0 1 / RESPONDENT BY : SHRI J. PRABHAKAR, CA SHRI B. JEEVAN KUMAR, CA SHRI A.P. RAVI, ADVOCATE 2 0 3% / DATE OF HEARING : 06.08.2019 45* 0 3% / DATE OF PRONOUNCEMENT : 19.08.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE WAS DISPOSED OF EARLI ER BY AN ORDER DATED 15.02.2005. THE ASSESSEE FILED AN APPE AL BEFORE THE HIGH COURT. THE HIGH COURT BY JUDGMENT IN T.C.A. N O.2416 OF 2008 DATED 25.02.2019, REMITTED BACK THE MATTER FOR DECI DING THE APPEAL AFRESH IN ACCORDANCE WITH LAW PRONOUNCED BY THE APE X COURT IN CIT V. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306. THEREF ORE, THE APPEAL 2 I.T.A. NO.193/MDS/99 WAS POSTED AS PER THE STATEMENT OF THE HIGH COURT, FOR FRESH HEARING. 2. SHRI V.M. MAHIDAR, THE LD. DEPARTMENTAL REPRESEN TATIVE, SUBMITTED THAT THE ASSESSING OFFICER MADE DISALLOWA NCE OF 11,85,777/- AND 4,65,817/- TOWARDS THE PAYMENTS MADE BY THE ASSESSEE TO PF AND ESI RESPECTIVELY. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS), HOWEVER, RESTRICTED THE DISALLOWA NCE TO 2,43,869/- AND 83,209/- TOWARDS PF AND ESI RESPECTIVELY. REFERRING TO THE JUDGMENT OF HIGH COURT, THE LD. D. R. SUBMITTED THAT THE PAYMENTS WERE MADE BEFORE THE DUE DATE FOR FILI NG OF THE RETURN OF INCOME. THEREFORE, ACCORDING TO THE LD. D.R., T HE HIGH COURT REMANDED BACK THE MATTER FOR RECONSIDERATION IN THE LIGHT OF THE JUDGMENT OF APEX COURT IN ALOM EXTRUSIONS LTD. (SUP RA). ON A QUERY FROM THE BENCH WHAT WAS DISALLOWED BY THE ASS ESSING OFFICER WHETHER IT IS EMPLOYEES CONTRIBUTION OR EMPLOYERS CONTRIBUTION? THE LD. D.R. VERY FAIRLY SUBMITTED THAT THE FACTS A RE NOT EMERGING FROM THE ORDER OF THE ASSESSING OFFICER. THE LD. D .R. SUBMITTED THAT THE JUDGMENT OF APEX COURT IN ALOM EXTRUSIONS LTD. (SUPRA) IS APPLICABLE ONLY IN RESPECT OF THE EMPLOYERS CONTRI BUTION TO PF AND ESI AND IT IS NOT APPLICABLE TO EMPLOYEES CONTRIBU TION. ACCORDING TO 3 I.T.A. NO.193/MDS/99 THE LD. D.R., ONCE THE EMPLOYEES CONTRIBUTION WAS RECEIVED BY THE ASSESSEE, IT HAS TO BE DEPOSITED WITHIN THE DUE DAT E PROVIDED UNDER THE RESPECTIVE STATUTE. 3. ON THE CONTRARY, SHRI J. PRABHAKAR, THE LD. REPR ESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE MADRAS HIGH COURT AFTER CONSIDERING THE JUDGMENT OF APEX COURT IN ALOM EXTR USIONS LTD. (SUPRA), SPECIFICALLY DIRECTED THIS TRIBUNAL TO DEC IDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW AS PRONOUNCED BY THE APEX COURT. ON A QUERY FROM THE BENCH WHAT WAS DISALLOWED BY TH E ASSESSING OFFICER WHETHER IT IS EMPLOYEES CONTRIBUTION OR EM PLOYERS CONTRIBUTION? THE LD. REPRESENTATIVE SUBMITTED THA T EMPLOYEES CONTRIBUTION WAS DISALLOWED BY THE ASSESSING OFFICE R AS WELL AS THE CIT(APPEALS) AND THE ASSESSEE HAS NOT FILED ANY FUR THER APPEAL. WHAT IS DISPUTED BEFORE THIS TRIBUNAL IS ONLY IN RE SPECT OF EMPLOYERS CONTRIBUTION. ON A QUERY FROM THE BENCH, THE LD. R EPRESENTATIVE VERY FAIRLY SUBMITTED THAT THE FACTS ARE NOT EMERGI NG FROM THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE CIT(APPEALS ). THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THESE ARE ALL THE MATTERS OF THE YEAR 1999 AND THE FACTS MAY BE AVAILABLE IN THE AUD ITORS STATEMENT 4 I.T.A. NO.193/MDS/99 WHICH IS NOT READILY AVAILABLE. ACCORDING TO THE L D. REPRESENTATIVE, IT MAY BE AVAILABLE WITH THE DEPARTMENT IN THE ASSESSM ENT FOLDER. 4. BY WAY OF REJOINDER, SHRI V.M. MAHIDAR, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSMENT RECOR DS ARE NOT READILY AVAILABLE AND THE SO CALLED AUDITORS STATE MENT IS ALSO NOT AVAILABLE READILY TO PRODUCE THE SAME BEFORE THIS T RIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. FROM THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD, IT IS NOT KNOWN WHETHER THE SUBJECT MATTER OF THE PRESENT APP EAL IS IN RESPECT OF EMPLOYEES CONTRIBUTION OR EMPLOYERS CO NTRIBUTION TO PF AND ESI. THE LD. REPRESENTATIVE FOR THE ASSESSEE S UBMITTED THAT THE EMPLOYEES CONTRIBUTION WAS DISALLOWED BY THE C IT(APPEALS) AS WELL AS THE ASSESSING OFFICER. THIS FACT IS NOT EM ERGING FROM THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(APPEALS ). TO DECIDE THIS ISSUE IN THE LIGHT OF THE JUDGMENT OF APEX COU RT IN ALOM EXTRUSIONS LTD. (SUPRA) AS DIRECTED BY THE HIGH COU RT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE FACTS WHETHER THE SUBJECT MATTER OF ISSUE BEFORE THIS TRIBUNAL IS IN RESPECT OF EMPLOYEES CONTRIBUTION OR EMPLOYERS CONTRIBUTION HAS TO BE B ROUGHT ON RECORD. 5 I.T.A. NO.193/MDS/99 6. SINCE THE FACTS ARE ADMITTEDLY NOT EMERGING FROM THE IMPUGNED ORDERS OF THE BOTH THE AUTHORITIES BELOW, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER H AS TO RE-EXAMINE THE SAME AND BRING ON RECORD WHAT WAS DISALLOWED BY THE AUTHORITIES BELOW WAS IN RESPECT OF EMPLOYEES CONT RIBUTION OR EMPLOYERS CONTRIBUTION. SINCE THE ACTUAL FACTS AR E NOT AVAILABLE BEFORE THIS TRIBUNAL AND BOTH THE ASSESSEE AND THE REVENUE COULD NOT PRODUCE THE SO CALLED AUDITORS STATEMENT, WHER EIN THE FACTS ARE SAID TO BE ELUCIDATED, IS NOT READILY AVAILABLE AND THE HIGH COURT HAS FIXED THE TIME LIMIT OF SIX MONTHS FOR DISPOSAL OF APPEAL FROM 25.02.2019, THIS TRIBUNAL IS OF THE CONSIDERED OPIN ION THAT THE MATTER NEEDS TO BE REMITTED BACK TO THE FILE OF THE ASSESS ING OFFICER FOR RECONSIDERATION. ACCORDINGLY, ORDERS OF BOTH THE A UTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER AND BRING ON RECORD WHETHER IT IS EMPLOYEES CONTRIBUTION OR EMPLOYERS CONTRIBUTION WHICH WAS THE SUBJECT MATTE R OF THE ISSUE AND THEREAFTER DECIDE THE ISSUE AFRESH AFTER CONSID ERING THE JUDGMENT OF THE HIGH COURT DATED 25.02.2019 AND THE JUDGMENT OF 6 I.T.A. NO.193/MDS/99 APEX COURT IN ALOM EXTRUSIONS LTD. (SUPRA), AFTER G IVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 19 TH AUGUST, 2019 AT CHENNAI. SD/- SD/- ( ! ' # ) ( . . . ) (INTURI RAMA RAO) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 19 TH AUGUST, 2019. KRI. 0 .389 :9*3 /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. 2 ;3 () /CIT(A)-IV, CHENNAI 4. CIT, TN IV, CHENNAI 5. 9< .3 /DR 6. =) > /GF.