The ITO, Ward-4(3), Ahmedabad V. M/s. I Call India Pvt.Ltd., Ahmedabad

ITA 2052/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2302 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-01-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY RAI
• Assessee Lawyers: MRUNAL N SHAH
• Section: 43B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABA D (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI N.S. SAINI, A.M. ) I.T.A. NO. 2052/AHD./2010 ASSESSMENT YEAR : 2004-2005 INCOME TAX OFFICER, WARD-4(3), AHMEDABAD VS.- M/S . I CALL INDIA PVT. LTD., AHMEDABAD (PAN : AAACI 8432 K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY RAI, S R. D.R. RESPONDENT BY : SHRI MRUNAL N. SHAH, A.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE O RDER DATED 19-3-2010 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XX, AHMEDABAD F OR THE ASSESSMENT YEAR 2004-05 ON THE FOLLOWING GROUNDS :- (1) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS I N DELETING THE DISALLOWANCE OF RS.4,01,959/- MADE BY THE A.O. ON A CCOUNT OF NON-PAYMENT OF CONTRIBUTION TO P.F. WITHIN THE DUE DATE OF THE RELEVANT ACT. (1.2) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT IN TERMS OF SECTION 2(24) READ WITH SECTI ON 36(1)(VA) OF THE ACT, THE AMOUNT, IF NOT PAID WITHIN THE SPECIFIED DUE DATE, IS NOT ALLOWABLE AS DEDUCTION. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A.) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. (3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A.) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED T O THE ABOVE EXTENT. 2. THE MAIN GRIEVANCE OF THE REVENUE IN ITS APPEAL IS WITH REGARD TO THE GROUNDS NO.1 & 2 OF NON-PAYMENT OF CONTRIBUTION TO PF AMOUNTING TO R S.4,01,959/-, SHRI MRUNAL N. SHAH, LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE POINTED THAT AS PER THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF C.I.T. VS. ALOM EXTRUSIONS LTD ., (2009) 319 ITR 306 (SC), CONTRIBUTION TO P.F. WHICH IS PAID BEFORE THE DUE DATE FOR FILING T HE RETURN OF INCOME IS ALLOWABLE AS DEDUCTION U/S. 43B OF THE I. T. ACT, 1961. HE ACCORDINGLY SUB MITTED THAT FOLLOWING THE JUDGMENT OF THE 2 HON'BLE SUPREME COURT (SUPRA) ASSESSING OFFICER BE DIRECTED TO ALLOW EMPLOYEES CONTRIBUTION AMOUNTING TO RS.4,01,959/-, WHICH WAS PAID WELL BEF ORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 5. ON THE OTHER HAND, SHRI SANJAY RAI, LD. SR. D.R. APPEARING ON BEHALF OF THE REVENUE POINTED OUT THAT EMPLOYEES CONTRIBUTION IS COVERED BY SECTION 36(1)(VA) ALONE. SECTION 43B(B) SPEAKS ONLY EMPLOYERS CONTRIBUTION. IN RESPECT OF EMPLOYEES CONTRIBUTION UNDER SECTION 43B HAS NO APPLICATION. HE ACCORDINGLY CONTENDED THAT T HE VIEW TAKEN BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE UPHELD. 6. RIVAL SUBMISSIONS WERE CONSIDERED. WE HAVE CAREF ULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE JUDGMENT OF THE HO N'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). IT IS PERTINENT TO NOTE TH AT THE SAID JUDGMENT OF THE HON'BLE SUPREME COURT IS APPLICABLE IN RESPECT OF EMPLOYERS AS WEL L AS EMPLOYEES CONTRIBUTION. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ALLOW THE EMPLOYEES CONTRIBUTION TO THE EXTENT IT IS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER SIGNED AND PRONOUNCED IN THE COURT ON 21 .01.2011 SD/- SD/- (N.S. SAINI) (T.K. SH ARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21 / 01 / 2011 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD. LAHA/ SR. P.S.