D.C.I.T Cir - 2,kolkata, Kolkata V. M/s Siemens VIA Metals Technologies Pvt Ltd, Kolkata

ITA 1944/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9251 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 08-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 17-06-2013
• Court: TRIBUNAL
• Department Lawyers: R S BISWAS
• Assessee Lawyers: JAI SAHI; AKSHATA MEHTA
• Keywords: Competent authority

Judgement Text

I.T.A. NO. 1944/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1944/KOL/ 2013 ASSESSMENT YEAR : 2009-2010 DEPUTY COMMISSIONER OF INCOME TAX,................ ..............APPELLANT CRCLE-2, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700 069 -VS.- M/S. SIEMENS VAI METALS TECHNOLOGIES PVT. LIMITED,. .................RESPONDENT BLOCK-EP, PLOT-Y5, SALT LAKE, KOLKATA-700 091 [PAN: AABCV 8348 L] APPEARANCES BY: SHRI R.S. BISWAS, CIT, D.R., FOR THE DEPARTMENT MS. AKSHATA MEHTA, A.R. AND MS. JAI SAHI, A.R., FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : FEBRUARY 08, 2017 DATE OF PRONOUNCING THE ORDER : FEBRUARY 28, 2017 O R D E R PER SHRI J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXIV, KOLKATA DATED 28.03.2013 FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GR OUNDS:- (1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-XXIV, KOLKATA HAS ERRED IN DELETING THE ADDITION OF RS.23,42,193/- AND RS.46,33,577/- ON ACCOUNT OF CONTRIBUTION TO THE SUPERANNUATION FUND AND THE GRATUITY FUND ALTHOUGH THE ASSESSEE COULD NOT FURNISH ANY EVIDENC E IN RESPECT OF APPROVAL OF SUCH FUNDS FROM THE CONCERNED COMPETENT AUTHORITY? I.T.A. NO. 1944/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 4 (2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A)-XXIV, KOLKATA HAS ERRED IN DIRECTING TO ALLOW DEDUCTION IN RESPECT OF CONTRIBUTION TOWARDS GRATUITY FUND AND SUPERANNUATION FUND MADE IN THE F.Y. 2008-09 ALTHOUGH APPLICATION OF THE ASSESSEE-COMPANY FOR APPROVAL OF THE DEED OF VARIATION WAS MADE ON 27.01.2012 BEFORE LD. CIT, KOL-I, KOLKATA, I.E. AFT ER THE COMPLETION OF THE RELEVANT F.Y.? 2. WE HAVE HEARD SHRI R.S. BISWAS, LD. CIT, D.R. AN D MS. AKSHATA MEHTA, LD. COUNSEL FOR THE ASSESSEE. THE FIRST APPELLATE A UTHORITY IN HIS ORDER AT PARA 2.3 OBSERVED AS FOLLOWS:- 2.3. I HAVE CAREFULLY CONSIDERED THE ABOVE OBSERV ATION OF THE ASSESSING OFFICER AND ALSO THE SUBMISSION OF THE LD . AIR. DURING THE COURSE OF THE APPELLATE PROCEEDINGS, THE LD. AI R HAS EXPLAINED THAT THE GRATUITY FUND OF THE APPELLANT C OMPANY IS MAINTAINED WITH LIFE INSURANCE CORPORATION OF INDIA . DURING F.Y. 2008-09, THE APPELLANT COMPANY INCURRED RS.46,33,57 7/- ON ACCOUNT OF GRATUITY FUND. THE FUND OF THE APPELLANT COMPANY IS IN THE NAME OF 'VAI INDIA PVT. LTD.' AND NOT IN ITS PRESENT NAME I.E. 'SIEMENS VAI METALS TECHNOLOGIES PVT. LTD.' AC CORDINGLY, THE A.O. HAS HELD THAT THE APPELLANT DID NOT HAVE ANY G RATUITY FUND OF ITS OWN AND DISALLOWED THE CONTRIBUTION OF RS.46 ,33,577/-. THE LD. A/R HAS FURTHER EXPLAINED THAT AS PER THE O RDER OF THE HON'BLE CALCUTTA HIGH COURT, THE APPELLANT COMPANY WAS MERGED WITH VAI INDIA PVT. LTD. WITH EFFECT FROM 01.01.200 2 AND ITS PRESENT NAME IS M/S. 'SIEMENS VAI METALS TECHNOLOGI ES PVT. 'LTD.' THE APPELLANT HAS FILED A LETTER BEFORE THE CIT ON 27.01.2012 INFORMING THE ABOVE CHANGES WITH NECESSA RY DOCUMENTS. THE LD. AIR HAS ALSO FURNISHED A COPY OF THE LETTER NO. CIT KOL-I/GF/SF/12- 13/7390 DATED 18.02.2013 IS SUED BY THE A.C.LT. HQRS-1, KOLKATA WHICH IS REPRODUCED AS UNDER:- 'SUB: APPROVAL OF DEED OF VARIATION OF SIEMENS VAI METALS TECHNOLOGIES PVT. LTD. EMPLOYEES SUPERANNUATION FUND & SIEMENS VAI METALS TECHNOLOGIES PVT. LTD. EMPLOYEES GRATUITY FUND. REF: YOUR LETTER DATED 23.01.2013. SIR, WITH REFERENCE TO THE CAPTIONED LETTER THIS TO INFO RM YOU THAT THE MATTER IS BEING CONSIDERED AND THE APPROVAL OF DEED OF VARIATIONS ARE UNDER PROCESS.' I.T.A. NO. 1944/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 4 THE LD. A/R HAS ALSO EXPLAINED THAT THE NECESSARY APPROVALS FOR THE SIEMENS VAI METALS TECHNOLOGIES P VT. LTD. EMPLOYEES SUPERANNUATION FUND AND SIEMENS VAI METALS TECHNOLOGIES PVT. LTD. EMPLOYEES GRATUITY FU ND WOULD BE RECEIVED SHORTLY. IN VIEW OF THE ABOVE, TH E A.O. IS DIRECTED TO DELETE (I) THE ADDITION OF RS.23,42, 193 I - ON ACCOUNT OF CONTRIBUTION TO SUPERANNUATION FUND A ND (II) THE ADDITION OF RS.46,33,577/- ON ACCOUNT OF CONTRIBUTION TO GRATUITY FUND SUBJECT TO THE CONDIT ION THAT THE DEED OF VARIATION OF AFORESAID SUPERANNUAT ION FUND AND THE GRATUITY FUND OF THE APPELLANT COMPANY ARE APPROVED BY THE COMMISSIONER OF INCOME-TAX AT TIME OF GIVING EFFECT TO THIS ORDER. IF THE COMMISS IONER OF INCOME-TAX DOES NOT APPROVE THE DEED OF VARIATIO N OF AFORESAID SUPERANNUATION FUND AND THE GRATUITY FUND, THE ADDITIONS OF RS.23,42,193/- AND RS.46,33,577/- ON ACCOUNT OF CONTRIBUTIONS TO THE SUPERANNUATION FUND AND THE GRATUITY FUND RESPECTIVELY ARE TO BE TREATED AS CONFIRMED. FOR STATISTICAL PURPOSE, THESE GROUNDS OF APPEAL ARE ALLOWED. 3. WE DO NOT FIND ANY INFIRMITY IN THIS ORDER OF TH E FIRST APPELLATE AUTHORITY. THE LD. CIT(APPEALS) HAS DIRECTED THE AS SESSING OFFICER TO VERIFY THE FACTS AND PASS NECESSARY CONSEQUENTIAL O RDERS. THE DIRECTIONS ARE SPECIFIC. UNDER THESE CIRCUMSTANCES, WE SEE NO REASON TO INTERFERE WITH THE SAME. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 28, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (J. SUDHAKAR REDDY) JUDICIAL MEMBER AC COUNTANT MEMBER KOLKATA, THE 28 TH DAY OF FEBRUARY, 2017 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CRCLE-2, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700 069 (2) M/S. SIEMENS VAI METALS TECHNOLOGIES PVT. LIMITED, BLOCK-EP, PLOT-Y5, SALT LAKE, KOLKATA-700 091 I.T.A. NO. 1944/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 4 OF 4 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-XXIV, KO LKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.