M/s. Jawala Steel Pvt. Ltd., Kolkata V. ACIT, CC-XXX, KOLKATA, Kolkata

ITA 2100/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1654 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 17-11-2014
• Court: TRIBUNAL
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH, KOLKATA (BENCH- C) BEFORE SHRI N. V. VASUDEVAN JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER, I.T.A. NO. 2100/KOL/2014 ASSESSMENT YEARS: 2009-10 ORDER PER M. BALAGANESH, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) CENTRAL-III, KOLKATA (HEREINAFTER REFERRED TO AS THE LD. CIT(A)), , PASSED UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DT. 30.09.2014, RELATING TO ASSESSMENT YEAR 2009-10. M/S. JAWALA STEEL PVT. LTD. [PAN : AAACJ9638E ] -VS- A.C.I.T., CC-XXX, KOLKATA (APPELLANT) (RESPONDENT) FOR THE ASSESSEE SHRIMIRAJ D. SHAH, AR FOR THE REVENUE SHRIGOULENHANGSHING, CIT, DR DATE OF HEARING 02.05.2017 DATE OF PRONOUNCEMENT 02.06.2017 2 I.T.A. NO. 2100/KOL/2014 ASSESSMENT YEARS: 2009-10 M/S. JAWALA STEEL PVT. LTD. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD.CIT(A) WAS JUSTIFIED IN UPHOLDING THE DISALLOWANCE MADE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PF AND ESI WHICH WERE PAID BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT , IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESSEE HAD REMITTED THE EMPLOYEES CONTRIBUTION TO PF AND ESI BEYOND THE DUE DATES PRESCRIBED UNDER THE RESPECTIVE ACTS WITH CERTAIN DELAYS. THE ASSESSEE DID NOT MAKE ANY DISALLOWANCE IN THIS REGARD IN THE RETURN OF INCOME. THE LD. AO MADE THE SAME BY INVOKING THE PROVISIONS OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE ACT. THE LD.CIT(A) DELETED THE DISALLOWANCE ON THE GROUND THAT THE SAME HAD BEEN DULY REMITTED BY THE ASSESSEE BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND:- 1) THAT THE LD.CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS.3,77,678/ (RS.1 0,35,039/ ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND P.F & RS.1,43,354/ ON ACCOUNT OF EMPLOYEES CONTRIBUTION OF ESI) U/S 36(1 )(VA)/2(24)(X) ON ACCOUNT OF THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AND ON ACCOUNT OF EMPLOYEES CONTRIBUTION OF ESI PAID BEFORE THE DUE DATE OF FILING OF RETURN U/S139(1) OF THE ACT. THE ADDITION NEEDS TO BE DELETED. 2) THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AMEND & MODIFY ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. WE HAVE HEARD THE LD. DR. THE ASSESSEE HAD PREFERRED AN ADJOURNMENT PETITION ON THE DATE OF HEARING AND THE SAME WAS REJECTED AS THE ISSUE UNDER DISPUTE IS ALREADY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH 3 I.T.A. NO. 2100/KOL/2014 ASSESSMENT YEARS: 2009-10 M/S. JAWALA STEEL PVT. LTD. COURT. THE DATE OF REMITTANCE OF THE SAME TOGETHER WITH THE RESPECTIVE DUE DATES FOR EACH MONTH IS REFLECTED IN THE ORDER OF THE LD.CIT(A) AND THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. WE FIND THAT THE ISSUE UNDER DISPUTE IS COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN FAVOUR OF THE ASSESSEE IN THE CASE OF ACIT VS VIJAY SHREE LTD IN ITAT NO. 245 OF 2011 DATED 6.9.2011 WHEREIN THE HONBLE CALCUTTA HIGH COURT BY PLACING RELIANCE ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VSALOM EXTRUSION LTD REPORTED IN (2009) 309 ITR 306 (SC) HELD THAT THE AMENDMENT TO SECOND PROVISO TO SECTION 43B OF THE ACT IS CURATIVE IN NATURE AND HENCE TO BE APPLIED RETROSPECTIVELY AND SUCH BEING THE POSITION, THE DELETION OF THE AMOUNT PAID BY THE EMPLOYEES CONTRIBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVOKING THE AFORESAID AMENDED PROVISIONS OF SECTION 43B OF THE ACT. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE ALLOW THE GROUNDS RAISED BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 02.06.2017. SD/- SD/- [N. V. VASUDEVAN] [M. BALAGANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :02.06.2017 {SC SPS} 4 I.T.A. NO. 2100/KOL/2014 ASSESSMENT YEARS: 2009-10 M/S. JAWALA STEEL PVT. LTD. COPY OF THE ORDER FORWARDED TO: 1. ASSESSEE- M/S. JAWALA STEEL PVT. LTD., 8C, M.D. ROAD, 4 TH FLOOR, SUIT NO. 15, KOLKATA-700007. 2.REVENUE A.C.I.T., CC-XXX, KOLKATA 3.CIT(A)- KOLKATA. 4.CIT , KOLKATA. 5.CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE, DDO, KOLKATA BENCHES, KOLKATA. DATE INITIAL 1. DRAFT PREPARED BY HONBLE AM 02.05.17 SR.PS 2. DRAFT PLACED BEFORE AUTHOR AFTER EDITING 17 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE H.C. 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER.