DCIT, Circle - 4, Kolkata, Kolkata V. M/s. Nilpur Tea Co. Ltd., Kolkata

ITA 1993/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54684 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: D S DAMLE
• Section: 43B

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . , ,, , . . ! ! ! ! . , '# '# '# '# ] [BEFORE SHRI N. VIJAYA KUMARAN, J. M. & SHRI C. D. RAO, A.M.] $ $ $ $ / I.T.A NO.1993/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2005-06 DY. COMMISSIONER OF INCOME TAX -VS.- M/S. NILPUR TEA CO. LIMITED CIRCLE-4, KOLKATA. KOLKATA [PAN : AAACN 8309 C]. [ *+ *+ *+ *+ /APPELLANT ] ]] ] [ -.*+ -.*+ -.*+ -.*+/ // / RESPONDENT ] ]] ] *+ *+ *+ *+ / FOR THE APPELLANT : SHRI S. K. ROY -.*+ -.*+ -.*+ -.*+ / FOR THE RESPONDENT : SHRI D. S. DAMLE / 0 !# / 0 !# / 0 !# / 0 !# /DATE OF HEARING : 11.11.2011 1' 0 !# 1' 0 !# 1' 0 !# 1' 0 !# /DATE OF PRONOUNCEMENT : '2 /ORDER . . . . , PER N. VIJAYA KUMARAN, J. M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST ORDER OF LD. CIT(A)-IV, KOLKATA DATED 24.04.2010 FOR ASSESSMENT YEAR 2006-07. 2. THE GROUNDS OF APPEAL ARE AS UNDER :- (1) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A)-IV, KOLKATA ERRED IN DELETING THE ADDITION OF RS.4,66,5 68/- BEING CESS ON GREEN LEAF ONLY IN VIEW OF DECISION OF HONBLE CAL CUTTA HIGH COURT, PRONOUNCED IN THE CASE OF AFT INDUSTRIES LTD. VS. C IT [270 ITR 167 (CAL.) 2004] WITHOUT CONSIDERING THAT THE REVENUE H AS FILED SLP AGAINST THAT ORDER AND FINALLY IN THIS CASE HAS NOT ARRIVED AT. (2) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A)-IV, KOLKATA ERRED IN DELETING THE DISALLOWANCE OF RS.7, 20,330/- BEING EMPLOYEES CONTRIBUTION TO P.F. ON ACCOUNT OF DELAY ED PAYMENT. 3. THE FIRST GROUND AGAINST DELETION OF ADDITION OF RS.4,66,568/- BEING CESS ON GREEN LEAF. DEPARTMENTS CONTENTION WOULD BE THAT THIS CESS CAN NOT BE ALLOWED IN TERMS OF DECISION OF [ ITA NO.1993/KOL/2010] 2 HONBLE JURISDICTIONAL HIGH COURT. ACCORDING TO THE DEPARTMENT AGAINST THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF AFT INDUST RIES LIMITED VS. CIT [2004] 270 ITR 167 (CAL.), SLP BEFORE HONBLE SUPREME COURT IS PENDING . LD. CIT(A) FOUND THAT JURISDICTIONAL HIGH COURT CITED (SUPRA) SETTLED THE ISSUE OF ALLOWABILI TY OF CESS ON GREEN LEAF IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT. THEREFORE, HE DELETED T HE DISALLOWANCE. 4. LD. DEPARTMENTAL REPRESENTATIVE RELIED THE GROUN D AND THE FINDINGS OF THE ASSESSING OFFICER. 5. LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECIS ION, YET ANOTHER DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M/S. CAMELLIA TEA GROUP PVT. LTD. VIDE ITA NO.123 OF 2009 DATED 16.07.2010. IN THIS ORDER, THEIR LORDSHIPS DE CIDED THE ISSUE OF CESS ON GREEN TEA LEAVES BY FOLLOWING THE JURISDICTIONAL HIGH COURTS DECISION. IN THIS CASE, A.F.T INDUSTRIES LIMITED (SUPRA) HELD THAT THE TRIBUNALS ORDER IS NOT SUFFERED FROM ANY INFIRMITY WHEREBY TRIBUNAL CONFIRMED THE ORDER OF LD. CIT(A) BY FOLLOWING THE JURISDICTIONAL HIGH COURTS DECISION IN THE CASE OF A.F.T INDUSTRIES LIMITED (SUPRA). HENCE, WE HAVE NO HESIT ATION IN CONFIRMING THE ORDER OF LD. CIT(A) BY REJECTING THE FIRST GROUND OF THE DEPARTMENT BY RESPECTFULLY FOLLOWING THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. CAMEL LIA TEA GROUP PVT. LTD. (SUPRA). 6. COMING TO GROUND NO.2, IT IS DELETION OF ADDITIO N OF RS.7,20,330/- BEING EMPLOYEES CONTRIBUTION TO PROVIDENT FUND. ASSESSING OFFICER W AS OF THE VIEW THAT RIGOR OF SECTION 43B WILL COME INTO PLAY AND AS PER SECTION 36(1)(VA) READ WI TH SECTION 2(24)(X), HE DISALLOWED. ON APPEAL TO THE LD. CIT(A), LD. CIT(A) FOUND THAT PROVIDENT FUND REGULATION PROVIDES THAT THE CONTRIBUTION IS REQUIRED TO BE DEPOSITED WITHIN 15 DAYS FROM THE END OF RELEVANT MONTH WITH 5 DAYS GRACE PERIOD FOR MAKING MONTHLY CONTRIBUTION. TAKING THE ASSESSING OFFICERS ADMISSION ALSO INTO CONSIDERATION AND AS PER CHART WHICH REFL ECTS THE DUE DATE AND DATE OF DEPOSIT. IT IS CRYSTAL CLEAR THAT ALL CONTRIBUTIONS WERE PAID PRIO R TO 20 TH DAY OF THE SUCCEEDING MONTH FOR WHICH SALARY WAS DUE. TAKING THIS, THERE IS NO DELAY IN P AYING EMPLOYEES CONTRIBUTION. . HOWEVER, THE DECISION OF HONBLE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. GEORGE WILLIAMSON (ASSAM) LTD. [2006] 284 ITR 619 (GAUHATI) AND THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. P.M. ELECTRONICS LTD.[2009] 313 ITR 161 (D ELHI) AND THE DECISION OF HONBLE KARNATKA HIGH COURT IN THE CASE OF CIT VS. SABARI ENTERPRISE S [298 CTR 141] WHEREIN HONBLE HIGH [ ITA NO.1993/KOL/2010] 3 COURT HELD THAT THE PROVIDENT FUND CONTRIBUTION PAI D BEFORE THE DUE DATE FOR FILING RETURN ARE FULLY ALLOWABLE. HERE, IN THIS CASE, THE FACT THAT ALL CONTRIBUTIONS WERE PAID WITHIN DUE DATE AND FURTHERMORE, VARIOUS HIGH COURTS HELD THAT PAYMENTS MADE BEFORE DUE DATE FOR FILING OF RETURN WERE FULLY ALLOWABLE. HENCE, SECTION 43B CAN NOT BE INVOKED. IN THIS CASE, AS DECIDED BY THE VARIOUS HIGH COURTS, LD. CIT(A) HAS FOLLOWED THE DE CISIONS OF VARIOUS HIGH COURTS (SUPRA). HE ALSO RIGHTLY DIRECTED THE ASSESSING OFFICER TO DELE TE THE DISALLOWANCE OF RS.7,20,330/- ON ACCOUNT OF CONTRIBUTION TOWARDS PROVIDENT FUND. UNDER THE A BOVE FACTS AND CIRCUMSTANCE AND LD. COUNSELS RELIANCE ON THE DECISION OF HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF ARAMBAGH HATCHERIES LTD. VIDE ITA NOS. 267, 268 & 269 OF 200 4 DATED 11.03.2011, WHEREIN HONBLE JURISDICTIONAL HIGH COURT HELD THAT THE ASSESSEE SH OULD GET THE BENEFIT OF AMENDED PROVISIONS AS THE DEPOSIT MADE WAS WITHIN THE TIME PRESCRIBED IN SECTION 139(1) I.E. DUE DATE FOR FILING THE RETURN READ WITH SECTION 43B OF INCOME TAX ACT. RES PECTFULLY, FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT AND THE DECISION OF HONB LE SUPREME COURT IN THE CASE OF CIT. VS. ALOM EXTRUTIONS LIMITED [2009] 319 ITR 306 (SC). RE SPECTFULLY, FOLLOWING THE ABOVE DECISION, THIS GROUND ALSO DECIDED AGAINST THE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. '2 '2 '2 '2 #' #' #' #' 3 4 56 3 4 56 3 4 56 3 4 56 !# !# !# !# ORDER PRONOUNCED IN THE COURT ON . [ . . . . 7 77 7. .. .'58 '58 '58 '58 , '# '# '# '# ] [ . . . . , ,, , ] [ C. D. RAO ] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : NOVEMBER, 2011. [ ITA NO.1993/KOL/2010] 4 '2 0 -%% 9''/ COPY OF THE ORDER FORWARDED TO: 1. *+ /APPELLANT : DY.COMMISSIONER OF INCOME TAX, CIRCLE -4, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069. 2 . -.*+ / RESPONDENT : M/S. NILPUR TEA CO. LTD., 4, MANGOE LANE, SURENDRA MOHAN GHOSH SARANI , KOLKATA-700 001. 3. %2 - / CIT, 4. %2 ()/ CIT(A), KOLKATA. 5. 7%4 -%/ DR, KOLKATA BENCHES, KOLKATA [. -%/ TRUE COPY] '2/ BY ORDER, /ASSTT. REGISTRAR [KKC BC %D %E /SR.PS]