KEER HOTELS P. LTD, MUMBAI V. ITO 8(2)-2, MUMBAI

ITA 2349/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8419 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY KOTHARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI P.M. JAGTAP (AM) AND SMT. ASHA VIJAYARA GHAVAN (JM) ITA NO. 2349/MUM/2010 ASSESSMENT YEAR- 2005-06 M/S. KHEER HOTELS PVT. LTD., 5, JUHU TARA ROAD, MUMBAI-400 049 PAN-AAACK 6363K VS. THE ITO - 8(2), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VIJAY KOTHARI RESPONDENT BY: SHRI VIJAY SHANKAR O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 16.12.2009 PASSED BY THE LD. CIT(A)-17 FOR TH E ASSESSMENT YEAR 2005-06. 2. THE ONLY GROUND OF APPEAL BEFORE US IS THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN DISALLOWING EMPLOYEES CONTRIB UTION TO ESIC OF RS. 8,928/- AND EMPLOYEES CONTRIBUTION TO PROVIDENT F UND OF RS. 1,87,665/- ON THE GROUND THAT IT WAS PAID AFTER THE DUE DATE. 3. THE LD. COUNSEL FOR THE ASSESSEE SHRI VIJAY KOTH ARI SUBMITTED BEFORE US THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE DUE DATE FOR PAYMENT OF ESIC & EMPLYEES CONTRIBUTION TO PF EXPIR ED ONLY THE LAST DATE FOR FILING OF THE RETURN OF INCOME. 4. WE FIND THAT THE ISSUE IS NOW SETTLED BY THE DEC ISION OF THE SUPREME COURT IN THE CASE OF CIT VS ALOM EXTRUSIONS LTD 319 ITR 306 AND THE DELHI HIGH COURT IN THE CASE OF CIT VS AIM IL LTD. 321 ITR 508 WHEREIN THE HIGH COURT HAS HELD THAT BOTH THE EMPLO YERS AND THE ITA NO. 2349/M/10 2 EMPLOYEES CONTRIBUTION AS WELL AS OTHER INCIDENTAL CHARGES CANNOT BE DISALLOWED U/S 43B, IF PAID BEFORE THE DUE DATE OF FILING OF THE RETURN U/S 139(1). WE FIND SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI HIGH COURT IN THE CASE OF CIT VS P.M. ELECTRONICS LTD (313 ITR 16 1). RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE ALLOW THE APPEAL OF THE ASSESSEE WITH THE DIRECTIONS THAT EMPLOYERS/ EMPLOYEES CONTRIBUTI ON TO P.F / ESIC, IF PAID WITHIN THE DUE DATE OF FILING OF THE RETURN U/ S 139(1) SHOULD BE ALLOWED AND CANNOT BE DISALLOWED U/S 43B. RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL PRONO UNCEMENTS, WE ALLOW ASSESSEES APPEAL. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 23 RD DAY OF FEBRUARY, 2011 SD/- SD/- ( P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 23 RD FEBRUARY, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 2349/M/10 3 DATE INITIALS 1 DRAFT DICTATED ON: 21 . 02 .201 1 SR. PS/PS 2. DRA FT PLACED BEFORE AUTHOR: 21 .02.2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ___ ___ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR: _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______