DCIT, CIR-5, KOLKATA, Kolkata V. M/s The Bisra Stone Lime Co. Ltd., Kolkata

ITA 2358/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4715 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 18-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 06-09-2013
• Court: TRIBUNAL
• Assessee Lawyers: T P KAR
• Keywords: Retrospective amendment
• Section: 43B; 143(3); 147; 148

Judgement Text

1 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] ITA NO.2358/KOL/2013 ASSESSMENT YEAR : 2004-05 D. C.I.T., CIRCLE-5, -VERSUS- M/S.THE BISRA STON E LIME CO.LTD. KOLKATA KOLKATA (PAN:AABCT2118C) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SALLONG YADEN, ADDL. CIT, SR .DR FOR THE RESPONDENT: SHRI T.P.KAR, FCA DATE OF HEARING : 18.05.2016. DATE OF PRONOUNCEMENT : 01.06.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 15.05.2013 OF CIT(A) VI, KOLKATA, RELATING TO AY 2004-05. 2. GROUNDS NOS. 1 AND 2 RAISED BY THE REVENUE READ AS FOLLOWS :- 1. THAT CIT(A) ERRED IN DELETING THE TOTAL DISALLO WANCE OF RS. 24,40,738/- BEING PAYMENTS TO EMPLOYEE'S PROVIDENT FUND AND SUPERANNU ATION FUND U/S. 43B RELATING TO A.Y. 2003-04, IN ACTUAL PAYMENT BASIS IN A.Y. 2004- 05 EVEN THOUGH THE SAID AMOUNTS WERE OUTSTANDING AS ON 31.03.2004. 2. THAT CIT(A) ERRED IN APPLYING PROVISION OF SECTI ON U/S. 43B AND DECISION OF CALCUTTA HIGH COURT IN THE CASE OF ARAMBAGH HATCHERIES LTD. VS CLT AS THE SAID EXPENSE WAS RELATED TO A.Y. 2003-04 NOT ALLOWABLE IN THE A.Y. 2 004-05. 3. THERE IS A DELAY OF 26 DAYS IN FILING THIS APPE AL WHICH IS EXPLAINED AS OWING TO ADMINISTRATIVE REASONS. THE LEARNED AR RAISED NO OB JECTION TO THE APPLICATION FOR CONDONATION OF DELAY. THE EXPLANATION FOR THE DELA Y AS GIVEN IS ACCEPTED AND THE DELAY IS CONDONED. 2 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 4. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF MINING AND SALE OF LIMESTONE AND DOLOMITE. FOR A.Y.2004-05 THE ASSESS EE FILED RETURN OF INCOME DECLARING LOSS OF RS.47,70,86,527/-. AN ORDER OF A SSESSMENT U/S 143(3) OF THE INCOME TAX ACT, 1961 (ACT) WAS PASSED ON 22.12.2006 DETERM INING THE TOTAL LOSS OF THE ASSESSEE AT RS.47,48,08,401/- . LATER ON NOTICE U/S 148 OF THE ACT WAS ISSUED FOR MAKING THE ASSESSMENT U/S 147 OF THE ACT. THE ASSES SEES CHALLENGED THE VALIDITY OF INITIATION OF PROCEEDINGS U/S 147 OF THE ACT BUT TH E SAID OBJECTION WAS REJECTED BY CIT(A) AND THE ASSESSEE IS NOT IN APPEAL AGAINST TH E ORDER OF CIT(A). 5. IN THE COURSE OF ASSESSMENT U/S 147 OF THE AC T, THE AO NOTICED THAT THE ASSESSEE HAD CLAIMED DEDUCTION WHILE COMPUTING ITS TOTAL IN COME, A SUM OF RS.24,40,738/- WHICH COMPRISES OF PROVISION OF PF CONTRIBUTION AND SUPERANNUATION CONTRIBUTION OF RS.19,05,242/- AND RS.5,35,396/- RESPECTIVELY. THES E WERE PROVIDENT FUND AND SUPERANNUATION CONTRIBUTION WHICH WERE PAYABLE UPTO 31.03.2003 AND SINCE THESE WERE NOT PAID ON OR BEFORE THE DUE DATE, IN VIEW OF THE PROVISION OF SECTION 43B OF THE ACT, THEY WERE NOT ALLOWED AS DEDUCTION IN COMPUTIN G THE ASSESSEES TOTAL INCOME FOR A.Y.2003-04. HOWEVER, THE ASSESSEE HAD PAID THE PRO VIDENT FUND AND SUPERANNUATION CONTRIBUTION DURING THE PREVIOUS YEAR AND CLAIMED T HE SAME AS DEDUCTION ON THE BASIS OF PAYMENTS IN A.Y.2004-05. THE ASSESSEES CLAIM FE LL WELL WITHIN THE PROVISION OF SECTION 43B OF THE ACT AND THE CLAIM HAD TO BE ALLO WED. IN THE ORDER OF ASSESSMENT THE AO HAS MERELY OBSERVED THAT THE ASSESSEE IN ITS REP LY DATED 12.11.2009 ON THE ISSUE HAD NOT CONTENTED AGAINST THE ISSUE AND HENCE IT HA S TO BE ASSUMED THAT THE ASSESSEE HAS NO OBJECTION FOR DISALLOWING THE CLAIM OF DEDUC TION FOR THE AFORESAID SUM. ACCORDINGLY A SUM OF RS.24,40,738/- WAS ADDED TO TH E TOTAL INCOME OF THE ASSESSEE. 6. ON APPEAL BY THE ASSESSEE THE CIT(A) DELETED THE ADDITION MADE BY THE AO FOLLOWING THE MANDATE IN SECTION 43B OF THE ACT WHI CH LAYS DOWN THAT DEDUCTION OTHERWISE ALLOWABLE UNDER THE ACT, IN RESPECT OF AN Y SUM PAYABLE BY AN ASSESSEE AS THE EMPLOYER BY WAY OF CONTRIBUTION TO PF OR SUPERANNUA TION FUND, SHALL BE ALLOWED, 3 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIAB ILITY TO PAY SUCH SUM AROSE TO THE ASSESSEE, AS DEDUCTION IN THE PREVIOUS YEAR IN WHIC H SUCH SUM HAS ACTUALLY BEEN PAID. 7. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HAS RAISED GROUND NOS. 1 AND 2 BEFORE THE TRIBUNAL. 8. ON PERUSAL OF THE GROUNDS OF APPEAL OF THE R EVENUE IT IS CLEAR THAT THE REVENUE DOES NOT DISPUTE THE FACT THAT THE EMPLOYEES CONTR IBUTION TO PF AND SUPERANNUATION CONTRIBUTION THAT WAS CLAIMED AS DEDUCTION WERE PAI D DURING THE PREVIOUS YEAR. IN SUCH CIRCUMSTANCES, AS WE HAVE ALREADY OBSERVED THAT PRO VISION U/S 43B OF THE ACT EMPOWER THE ASSESSEE TO CLAIM DEDUCTION ON PAYMENT BASIS. WE THEREFORE ARE OF THE VIEW THAT CIT(A) WAS FULLY JUSTIFIED IN ALLOWING TH E CLAIM OF THE ASSESSEE IN THIS REGARD. 9. GROUND NO.3 RAISED BY THE REVENUE READS AS FO LLOWS :- 3. THAT THE CIT(A) ERRED IN DELETING THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND OF RS. 59,03,940/- DEPOSITED BEYOND DUE DATE IN CONTRA VENTION TO THE PROVISION OF SECTION 2(24)(X) READ WITH SECTION 36(1 )(VA). 10. THE ASSESSEE HAD CLAIMED AS DEDUCTION A SUM OF RS.59,03,940/.- WHICH WAS EMPLOYEES CONTRIBUTION TO PF WHICH WAS PAID BEYOND THE DUE DATE UNDER THE RELEVANT LAW GOVERNING CONTRIBUTION TO PF. THE AO INVOKING T HE PROVISION OF SECTION 36(1)(VA) OF THE ACT DISALLOWED THE CLAIM OF THE ASSESSEE FO R DEDUCTION OF THE AFORESAID SUM. CIT(A), HOWEVER ALLOWED THE CLAIM OF THE ASSESSEE F OR DEDUCTION AND IN DOING SO FOLLOWED THE DECISION OF THE HONBLE ITAT KOLKATA B ENCH IN THE CASE OF DCIT VS M/S. TANTIA CONSTRUCTION LTD IN ITA NO.823/KOL/2010 DATED 21.10.2011. IT WAS NOT DISPUTED BY THE REVENUE THAT THE EMPLOYEES CONTRIB UTION TO PF HAD BEEN PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE OF FILING THE RE TURN U/S.139(1) OF THE ACT FOR A.Y.2004-05 THOUGH THE PAYMENTS WERE MADE AFTER THE DUE DATE PRESCRIBED UNDER THE RELEVANT LAW UNDER WHICH PF CONTRIBUTION WAS MADE. 4 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 11. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HAS RAISED GROUND NO.3 BEFORE THE TRIBUNAL. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS. IN CIT VS. AIMIL LIMITED THE HONBLE DELHI HIGH COURT IN ITA NO. 1063 OF 2006 ITA NO.7 55 OF 2008 ITA NO. 204 OF 2009 ITA NO. 1214/2008 WITH ITA NO. 1246/2008 ITA N O. 50/2009 ITA NO. 78/2009 JUDGMENT DATED DECEMBER 23, 2009 HAD TO DEAL WITH A CASE OF DISALLOWANCE U/S.36(1)(VA) OF THE ACT. THE HONBLE COURT DISCUS SED THE PROVISIONS OF S. 2 (24) (X) WHICH PROVIDES THAT AMOUNTS RECEIVED BY AN ASSESSEE FROM EMPLOYEES TOWARDS PF CONTRIBUTIONS ETC SHALL BE INCOME AND S. 36 (1) (VA) WHICH PROVIDES THAT IF SUCH SUMS ARE CONTRIBUTED TO THE EMPLOYEES ACCOUNT IN TH E RELEVANT FUND ON OR BEFORE THE DUE DATE SPECIFIED IN THE PF ETC LEGISLATION, THE A SSESSEE SHALL BE ENTITLED TO A DEDUCTION. THE COURT ALSO NOTICED THAT THE SECOND P ROVISO TO S. 43B (B) PROVIDED THAT ANY SUM PAID BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND ETC. SHALL BE ALLOWED AS A DEDUCTION ONLY IF P AID ON OR BEFORE THE DUE DATE SPECIFIED IN 36(1)(VA). AFTER THE OMISSION OF THE S ECOND PROVISO W.E.F 1.4.2004, THE DEDUCTION IS ALLOWABLE UNDER THE FIRST PROVISO IF T HE PAYMENT IS MADE ON OR BEFORE THE DUE DATE FOR FURNISHING THE RETURN OF INCOME. IN ALOM EXTRUSIONS 319 ITR 306 (SC), THE DELETION OF THE SECOND PROVISO HAS BEEN HELD TO BE WITH RETROSPECTIVE EFFECT. THE HIGH COURT HAD TO CONSIDER WHETHER THE BENEFIT OF S . 43B CAN BE EXTENDED TO EMPLOYEES CONTRIBUTION AS WELL WHICH ARE PAID AFTE R THE DUE DATE UNDER THE PF LAW BUT BEFORE THE DUE DATE FOR FILING THE RETURN. THE HO NBLE COURT HELD THAT: (I) THOUGH THE REVENUE HAS ARGUED THAT A DISTINCTIO N IS TO BE MADE BETWEEN EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUT ION AND THAT EMPLOYEES CONTRIBUTION BEING IN THE NATURE OF TRUST MONEY IN THE HANDS OF THE ASSESSEE CANNOT BE ALLOWED AS A DEDUCTION IF NOT PAID ON OR BEFORE THE DUE DATE SPECIFIED IN THE PF ETC LAW, THE SCHEME OF THE ACT IS THAT EMPLOYEES CONTR IBUTION IS TREATED AS INCOME U/S 2 (24) (X) ON RECEIPT BY THE ASSESSEE AND ALLOWED AS A DEDUCTION U/S 36 (1) (VA) ON MAKING DEPOSIT WITH THE CONCERNED AUTHORITIES. S. 4 3B (B) STIPULATES THAT SUCH DEDUCTION WOULD BE PERMISSIBLE ONLY ON ACTUAL PAYME NT; 5 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 (II) THE QUESTION AS TO WHEN ACTUAL PAYMENT SHOULD BE MADE IS ANSWERED BY VINAY CEMENTS 213 CTR 268 WHERE THE DELETION OF THE SECOND PROVI SO TO S. 43B W.E.F 1.4.2004 WAS HELD APPLICABLE TO EARLIER YEARS AS WE LL. AS THE DELETION OF THE 2ND PROVISO IS RETROSPECTIVE, THE CASE HAS TO BE GOVERN ED BY THE FIRST PROVISO. (III) IF THE EMPLOYEES CONTRIBUTION IS NOT DEPOSIT ED BY THE DUE DATE PRESCRIBED UNDER THE RELEVANT ACTS AND IS DEPOSITED LATE, THE EMPLOY ER NOT ONLY PAYS INTEREST ON DELAYED PAYMENT BUT CAN INCUR PENALTIES ALSO, FOR WHICH SPE CIFIC PROVISIONS ARE MADE IN THE PROVIDENT FUND ACT AS WELL AS THE ESI ACT. THEREFOR E, THE ACT PERMITS THE EMPLOYER TO MAKE THE DEPOSIT WITH SOME DELAYS, SUBJECT TO THE A FORESAID CONSEQUENCES. INSOFAR AS THE INCOME-TAX ACT IS CONCERNED, THE ASSESSEE CAN G ET THE BENEFIT IF THE ACTUAL PAYMENT IS MADE BEFORE THE RETURN IS FILED, AS PER THE PRINCIPLE LAID DOWN IN VINAY CEMENT . 13. A CONTRARY VIEW HAS BEEN EXPRESSED BY THE HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT-II VS. GUJARAT STATE ROAD TRANSPORT COR PORATION (2014) 41 TAXMANN. COM 100 (GUJ.) TAKING THE VIEW THAT THE BENEFIT OF DEDUCTION IF EMPLOYERS CONTRIBUTION ARE PAID ON OR DUE DATE OF FILING THE RETURN OF INC OME U/S.139(1) OF THE ACT AVAILABLE TO EMPLOYERS CONTRIBUTION COVERED U/S.43B OF THE ACT C ANNOT BE APPLIED IN THE CONTEXT OF SEC.36(1)(VA) OF THE ACT WHICH DEALS WITH EMPLOYEES CONTRIBUTION TO PROVIDENT FUND WITHIN THE DUE DATE PRESCRIBED UNDER THE RELEVANT L AW RELATING TO CONTRIBUTIONS TO PROVIDENT FUND. IN M/S.ESSAE TERAOKA PVT.LTD. VS. THE DCIT BY ORDER DATED 4.2.2014, IN ITA NO.480/2013, THE HONBLE KARNATAKA HIGH COURT DID NOT AGREE WITH THE VIEW TAKEN BY THE HONBLE GUJARAT HIGH COURT. SINCE THERE WERE DIVERGENT VIEWS ON THE ISSUE AND SINCE THERE IS NO DECISION OF THE HONBLE CALCUTTA HIGH COURT BROUGHT TO OUR NOTICE ON THIS ISSUE, WE PREFER TO FOLLOW TH E VIEW FAVOURABLE TO THE ASSESSEE. CONSEQUENTLY, WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE AND FIND NO MERIT IN GROUND NO.3 RAISED BY THE REVENUE. 14. GROUND NO.4 RAISED BY THE REVENUE READS AS F OLLOWS :- 4. THAT THE CIT(A) ERRED IN DELETING THE DISALLOWA NCE OF RS. 52,20,010/- UNPAID PROVIDENT FUND CONTRIBUTION NOT TAKEN INTO ACCOUNT WHILE COMPUTING TOTAL INCOME. 6 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 15. AS PER THE ANNEXURE-3 OF THE TAX AUDIT REPORT , IT WAS OBSERVED THAT THE ASSESSEE HAS PROVIDED A SUM OF RS.4,22,78,432/- FOR PROVIDEN T FUND CONTRIBUTION, SUPERANNUATION FUND CONTRIBUTION, ROYALTY, BONUS, E TC. HOWEVER, A SUM OF RS.76,93,906/- REMAINED UNPAID BEFORE FILING OF RET URN. IN ITS COMPUTATION OF INCOME THE ASSESSEE HAS ADJUSTED THE SUM OF RS.76,93,906/- . FROM ANNEXURE-3A ENCLOSED WITH TAX AUDIT REPORT, IT WAS OBSERVED BY THE AO TH AT THE ASSESSEE HAD PROVIDED A SUM OF RS.76,84,917/- AS PROVIDENT FUND CONTRIBUTIO N OUT OF WHICH RS.52,20,010/- REMAINED UNPAID. THE ASSESSEE WHILE PREPARING ITS C OMPUTATION OF INCOME HAD ADJUSTED THIS SUM OF RS.52,20,010/- TO ARRIVE AT NE T BUSINESS PROFIT. HOWEVER, THIS SUM OF RS.76,84,917/- AS PROVIDENT FUND CONTRIBUTION HA D ALREADY BEEN INCLUDED IN THE TOTAL SUM OF RS.4,22,78,432/-. THEREFORE, THE ASSES SEE HAS DEDUCTED THE AMOUNT OF RS.50,53,202/- TWICE, ONCE AS A PART OF RS.76,93,90 6/- AND AGAIN AS PART OF RS.52,20,01/-. THE AO FOUND THAT ASSESSEE IN ITS R EPLY SUBMITTED DATED 13TH SEPTEMBER, 2009 HAS NOT DEALT WITH THE TWICE DEDUCT ION OF THE SAME AMOUNT AND HAS TAKEN THE ISSUE OF LEGALITY OF SECTION 438 AND THE VARIOUS AMENDMENTS BROUGHT TO IT ALONG WITH JUDICIAL DECISIONS OF DIFFERENT AUTHORIT IES. THEREFORE, THE AO HELD THAT IT WAS CLEAR THAT THE ASSESSEE HAS NOTHING TO SAY AGAI NST THE DOUBLE DEDUCTION CLAIMED OF UNPAID AMOUNT OF EMPLOYEES' CONTRIBUTION, ETC. AND HENCE, RS.50,53,202/- WAS ADDED BACK TO THE TOTAL INCOME. 16. BEFORE CIT(A) THE ASSESSEE CONTENDED AS UNDE R :- 21. THE ASSESSING OFFICER MADE AN ADDITION OF RS.5 0,53,202/- BY OBSERVING IN ASSESSMENT ORDER PASSED U/S 147/143(3) AS FOLLOWS:- 'HOWEVER, THE EMPLOYEES' (AND NOT EMPLOYER 'S) SHAR E OF PROVIDENT FUND, WHICH IS COLLECTED BY THE EMPLOYERS FROM THE EMPLOYEES IS GO VERNED BY THE PROVISIONS OF SECTION 2(24)(X) READ WITH SECTION 36(L)(VA), IT STATES THA T THE EMPLOYEES' CONTRIBUTION HAS TO BE DEPOSITED BY THE ASSESSEE IN THE GOVERNMENT EXCHEQU ER BY 20 TH OF NEXT MONTH (WITH 5 DAYS OF GRACE ALLOWED). THE ASSESSEE IN ITS REPLY H AS DEALT ONLY WITH EMPLOYERS CONTRIBUTION OF PROVIDENT FUND, WHICH IS NO DOUBT A LLOWED IF PAID BEFORE FILING OF RETURN 'OF INCOME BUT IN THE MATTER OF EMPLOYEES' CONTRIBU TION OF PROVIDENT FUND, THE DUE DATE OF DEPOSIT IS THE 20TH OF NEXT MONTH OF WHICH THE DEDUCTIONS HAVE BEEN MADE. ' 22. THE ASSESSING OFFICER HAS MADE AN ADDITION SINC E THE. PAYMENT WAS NOT MADE AS PER THE DUE DATE FOR EMPLOYER'S CONTRIBUTION OF PROVIDE NT FUND. HOWEVER, THE PROVISION OF SECTION 438(B) PROVIDES THAT THE CONTRIBUTION TO PR OVIDENT FUND WILL BE ALLOWED AS DEDUCTION IN THE PREVIOUS YEAR IN WHICH SUCH SUM IS ACTUALLY PAID BY THE ASSESSEE. THE 7 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 ASSESSEE HAS FILED THE COPY OF THE TAX AUDIT REPORT IN WHICH THE AUDITOR HAS MENTIONED THAT THE SUM OF RS.50,53,202/- HAS BEEN PAID DURING THE PREVIOUS YEAR RELEVANT TO FINANCIAL YEAR 2004-05. THEREFORE, SINCE THE PAYMEN T HAS BEEN MADE ACTUALLY DURING THE PERIOD THE SAME IS ALLOWED AS A DEDUCTION. 17. CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING AS FOLLOWS :- 26. THEREFORE, IT IS HELD THAT THE APPELLANT IS EN TITLED' FOR DEDUCTION OF RS.50,53,202/- ON ACCOUNT OF EMPLOYER'S CONTRIBUTION TO PROVIDENT FUND; RS.59,03,940/- ON ACCOUNT OF EMPLOYEE'S CONTRIBUTION TO PROVIDENT FUND AND RS.24 ,40,738/- ON ACCOUNT OF PAYMENT FOR EMPLOYERS CONTRIBUTION TO PROVIDENT FUND AND SU PERANNUATION FUND RELEVANT TO THE ASSESSMENT YEAR 2093-04 AND AMOUNT DEPOSITED IN ASS ESSMENT YEAR 2004-05. THE TOTAL SUM OF THESE DEPOSITS AMOUNT TO RS.1,33,97,880/- AN D IS ALLOWED AS DEDUCTION WHICH WAS ORIGINALLY CLAIMED BY THE APPELLANT IN THE RETU RN AND ALLOWED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PASSED U/S 143(3) D ATED 22.12.2006. THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.1,33,97,880/- IN THE ASSESSMENT ORDER PASSED U/S 147/143(3) DATED 4.11.2009 IS DELETED FOLLOWING THE DECISION OF THE HON'BLE ITAT IN ITA NO.823/KO1/2010 DATED 21.10.2011 IN THE CASE OF DCIT, CIRCLE-4, KOLKATA VS. M/S. TANTIA CONSTRUCTION LTD. THIS GROUND OF APPEAL IS A LLOWED. 18. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENU E HAS RAISED GROUND NO.4 BEFORE THE TRIBUNAL. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT THE FIGURE OF RS.52,20,010/- IS GIVEN IN THE GROUNDS OF APPEAL WHEREAS THE AO AND C IT(A) HAVE MADE A REFERENCE TO A SUM OF RS.50,53,202 IN THEIR ORDERS. THE LEARNED C OUNSEL FOR THE ASSESSEE WAS NOT IN A POSITION TO EXPLAIN AS TO WHICH IS THE CORRECT FI GURE THAT IS SUBJECT MATTER OF THIS GROUND OF APPEAL. BE THAT AS IT MAY, FROM A READIN G OF THE ORDER OF AO IT IS CLEAR THAT THE ADDITION WAS MADE FOR THE REASON THAT A SUM OF RS.50,53,202/- WAS DEDUCTED TWICE IN ARRIVING AT THE TOTAL INCOME OF THE ASSESSEE DEC LARED BY THE ASSESSEE IN THE RETURN OF INCOME. IN THE SUBMISSIONS BEFORE CIT(A) THE ASSESS EE HAS NOT ADDRESSED THIS ISSUE NOR CIT(A) HAS ADDRESSED THIS ISSUE IN ITS ORDER. T HE BASIS ON WHICH THE CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE IS THAT THE ASSESSEE I S ENTITLED TO CLAIM DEDUCTION ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PF ON PAYMENT BASIS U/S 43B OF THE ACT. THIS WAS NOT AN ISSUE AT ALL BEFORE THE AO. IN THE GIVEN FACTS AND CIRCUMSTANCES WE SET ASIDE THE ORDER OF CIT(A) ON THIS ISSUE AND REMAND THE ISSUE TO THE AO FOR FRESH 8 ITA NO.2358/KOL/2013-M/S. THE BISRA STONE LIME CO.L TD A.Y.2004-05 CONSIDERATION. THE ASSESSEE WILL EXPLAIN AS TO HOW THE DEDUCTION IN QUESTION IS NOT A DOUBLE DEDUCTION. THE AO WILL CONSIDER THE SAME AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 20. IN THE RESULT THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 01.06.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.06.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. THE BISRA STONE LIME CO.LTD., AG-104, SAURAV ABASON, 2 ND FLOOR, SECTOR-II, SALT LAKE CITY, KOLKATA-700091. 2. D.C.I.T., CIRCLE-5, KOLKATA. 3. CIT(A)-VI, KOLKATA 4. CIT- II, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES