BHPV Ltd, Visakhapatnam V. Addl CIT, Visakhapatnam

ITA 197/VIZ/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0744 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 24-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBRATA SARKAR
• Keywords: Opportunity of being heard
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.197/VIZAG/2009 ASSESSMENT YEAR : 2005-06 BHPV LIMITED VISAKHAPATNAM ADDL. CIT, RANGE-3 VISAKHAPATNAM (APPELLANT) VS. (RESPONDENT) PAN NO.AAACB 7076N APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI SUBRATA SARKAR, DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) ON A SOLITARY GROUND THAT CIT(A) HAS ERRED I N CONFIRMING THE DISALLOWANCE OF CONTRIBUTION TO PROVIDENT FUND AMOU NTING TO RS.91,94,899/- MADE BY THE A.O. BY INVOKING THE PROVISIONS OF SECT ION 43B OF THE I.T. ACT. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE JUDGEMENT OF THE APEX COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306 WI TH THE SUBMISSIONS THAT THE IMPUGNED ISSUE IS SQUARELY COVERED BY THE AFORE SAID JUDGEMENT OF THE APEX COURT IN WHICH IT HAS BEEN HELD THAT THE OMISS ION OF SECOND PROVISO TO SECTION 43B AND THE AMENDMENT OF FIRST PROVISO BY F INANCE ACT, 2003 BRINGING ABOUT UNIFORMITY IN PAYMENT OF TAX, DUTY, CESS AND FEE ON ONE HAND AND CONTRIBUTION TO EMPLOYEES WELFARE FUNDS ON THE OTH ER ARE CURATIVE IN NATURE AND THUS EFFECTIVE RETROSPECTIVELY W.E.F. 1 ST APRIL, 1988 I.E. THE DATE OF INSERTION OF FIRST PROVISO. 3. DURING THE COURSE OF HEARING OF THE APPEAL OUR A TTENTION WAS INVITED TO THE ORDER OF THE CIT(A) IN WHICH CIT(A) HAS OBSERVE D THAT THIS DISALLOWANCE RELATE TO THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND TO WHICH PROVISIONS OF SECTION 43B DOES NOT APPLY. THESE FACTS WERE CONFR ONTED TO THE LD. COUNSEL 2 FOR THE ASSESSEE AND IN RESPONSE THERE TO THE LD. C OUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT CIT(A) HAS WRONGLY MENTIONED IT TO BE THE EMPLOYEES CONTRIBUTION, WHEREAS IT WAS AN EMPLOYERS CONTRIBU TION TO PROVIDENT FUND TO WHICH THE PROVISIONS OF SECTION 43B WILL APPLY. IN SUPPORT OF THESE FACTS, HE INVITED OUR ATTENTION TO SECOND PARA OF THE ASSESSM ENT ORDER IN WHICH THE A.O. HAS OBSERVED THAT THIS CONTRIBUTION RELATE TO THE EMPLOYERS CONTRIBUTION TO THE PROVIDENT FUND. 4. ON PERUSAL OF THE ORDER OF THE CIT(A) AS WELL AS THE A.O., WE FIND THAT IN ASSESSMENT ORDER THIS CONTRIBUTION WAS CONSIDERE D TO BE THE EMPLOYERS CONTRIBUTION BUT IN CIT(A)S ORDER, IT WAS CONSIDER ED TO BE EMPLOYEES CONTRIBUTION. DURING THE COURSE OF HEARING, NO CON CRETE EVIDENCE WAS FILED TO SUBSTANTIATE THE NATURE OF CONTRIBUTION. THE JUDGE MENTS OF THE APEX COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LIMITED (SUPRA) ONLY RELATE THE EMPLOYERS CONTRIBUTION TO PROVIDENT FUND AND NOT T HE EMPLOYEES CONTRIBUTION, AS IN CASE OF EMPLOYEE CONTRIBUTION, PROVISIONS OF SECTION 43B DOES NOT APPLY. 5. WE THEREFORE, OF THE VIEW THAT SINCE THE CORRECT FACTS ARE NOT RECORDED WITH REGARD TO THE NATURE OF CONTRIBUTION IN THE OR DERS OF LOWER AUTHORITIES, THE ISSUE REQUIRES A FRESH ADJUDICATION BY THE ASSE SSING OFFICER IN THE LIGHT OF JUDGEMENT OF THE APEX COURT IN THE CASE OF ALOM EXT RUSIONS LTD. (SUPRA). WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND R ESTORE THE MATTER TO THE FILE OF THE A.O. WITH THE DIRECTION TO ADJUDICATE T HE ISSUE AFRESH IN THE LIGHT OF JUDGEMENT OF THE APEX COURT IN THE AFORESAID CASE A FTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 21.5.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 21 ST MAY, 2010 3 COPY TO 1 BHARAT HEAVY PLATES & VESSELS LTD., NATHAYYAPALEM , BHPV POST, VISAKHAPATNAM 2 ADDL. CIT, RANGE-3, VISAKHAPATNAM 3 THE CIT, VISAKHAPATNAM 4 THE CIT(A), VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM