ITO, Ward - 1(2) , Kolkata V. M/s. Nellimarla Jute Mills Company Ltd., , Kolkata

ITA 2599/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7934 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 13-12-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.2599/KOL/2018 ( / ASSESSMENT YEAR:2014-15) ITO, WARD-1(2), KOLKATA VS. M/S NELLIMARLA JUTE MILLS COMPANY LTD. ROOM NO. 31, 1 ST FLOOR, FORTUNE TOWER, 3A, SHAKEAPEARE SARANI, KOLKATA-700071. ./ ./PAN/GIR NO.: AABCN 5591 M (ASSESSEE) .. (REVENUE) ASSESSEE BY :SHRI SHANKAR HALDER, JCIT, SR. DR RESPONDENT BY : SHRI SUBASH AGARWAL, ADVOCATE / DATE OF HEARING : 25/04/2019 /DATE OF PRONOUNCEMENT : 19/07/2019 / O R DE R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTA INING TO ASSESSMENT YEAR 2014-15, IS DIRECTED AGAINST THE ORDER PASSED B Y THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 29/12/2016. 2. THE APPEAL FILED BY THE REVENUE IS BARRED BY LIM ITATION BY 55 DAYS. THE REVENUE MOVED A PETITION REQUESTING THE BENCH TO CONDONE TH E DELAY. HAVING REGARD TO THE REASONS GIVEN IN THE PETITION FOR CONDONATION OF DE LAY. WE CONDONE THE DELAY AND ADMIT THE APPEAL OF REVENUE FOR HEARING. M/S NELLIMARLA JUTE MILLS COMPANY LTD. ITA NO.2599/KOL/2018 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 2 22 2 2. GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS ON LAW LD. CIT(A) HAS ERRED IN GRANTING RELIEF TO THE ASSESSEE U/S 36(1)(VA) IN RESPECT OF DISALLOWANCE OF EMPLOYEES CONTRIBUTION TOWARDS EPF & ESIC FUND AMOUNTING RS. 1,49,79,869/-. II) THE APPELLANT CRAVES THE LEAVE TO MAKE ANY ADDI TION, ALTERATION, MODIFICATION ETC. OF THE GROUNDS EITHER BEFORE THE APPELLATE PROCEEDINGS, OR IN THE COURSE OF APPELLATE PROCEEDINGS. 4. BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 18.10.2014 FOR AY 2014-15 DECLARING TOTAL LOSS OF R S. 2,94,67,002/-. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY THROUGH CASS AND N OTICE U/S 143(2) DATED 01.09.2015 WAS ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF JUT E MILL AND JUTE PRODUCTS. THIS WAS ALSO THE NATURE OF BUSINESS IN THE IMMEDIATELY PREC EDING YEAR. IN THE COURSE OF SCRUTINY PROCEEDINGS, THE ASSESSEE SUBMITTED VARIO US DETAILS PERTAINING TO THE BUSINESS ALONG WITH AUDITED ACCOUNTS AND TAX AUDIT REPORT. THE ASSESSING OFFICER EXAMINED TAX AUDIT REPORT AND NOTED THAT THE EMPLOY EES CONTRIBUTION OF RS. 1,25,45,492/- TOWARDS EPF AND RS. 24,34,377/- TOWAR DS ESIC FUND HAVE BEEN DEPOSITED BY THE ASSESSEE COMPANY AFTER THE DUE DAT E AS MENTIONED UNDER SECTION 36(1)(VA) OF THE ACT. THEREFORE IN THE LIGHT OF PRO VISION OF SECTION 2(24)(X) READ WITH SECTION 36(1)(VA) OF THE ACT THE ABOVE MENTION ED AMOUNTS I.E. RS. 1,25,45,492/- AND RS. 24,34,377/- AMOUNTING TO RS. 1,49,79,869/- WAS ADDED BY ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSES SEE. 5. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER . AGGRIEVED BY THE ORDER OF THE L D. CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE LD. COUNSEL HAS CONTENDED THROUGH THE WRITTEN SUBMISSION THAT THE EMPLOYEES CONTRIBUTION TO PF AND ESIC WERE PAI D BEFORE THE DUE DATE FOR FILING THE IT RETURN. THIS IS FOUND TO BE EVIDENCED BY THE CHART FOR ACTUAL PAYMENT M/S NELLIMARLA JUTE MILLS COMPANY LTD. ITA NO.2599/KOL/2018 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 3 33 3 FOR CONTRIBUTION TO PF AND ESIC ANNEXED BY THE APPE LLANT. THE LD. COUNSEL HAS ALSO RELIED UPON THE DECISION OF HONBLE CALCUTTA HIGH C OURT IN THE CASE OF CIT VS. VIJAYSHREE LTD. IN I.T.A. NO. 245 OF 2011 DATED 07. 09.2011 WHEREIN IT WAS HELD (BY FOLLOWING THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSION LTD.) THAT THE AMENDMENT TO THE 2 ND PROVISO TO SECTION 43(B) OF THE ACT AS INTRODUCED BY FINANCE ACT, 2003 WAS CURATIVE IN NATURE AND IS REQUIRED TO BE ALLOWED FROM 1 ST APRIL, 1988. THE LD. COUNSEL HAS ALSO RELIED UPON THE DECISION OF THE CO-ORDINATE BENCH OF KOLKATA IN THE CASE OF IT O VS. M/S RAGHUNATH EXPORT IN I.T.A NOS. 727 & 728/KOL/2017 WHEREIN IT WAS HELD T HAT THE PAYMENT OF EMPLOYEES CONTRIBUTION BEYOND THE DUE DATE WERE DE DUCTIBLE UNDER THE AMENDED PROVISION IN SECTION 43B OF THE ACT. 7. IN VIEW OF THE ABOVE DISCUSSION AND RESPECTIVELY FOLLOWING THE RATIO OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE C ASE OF M/S. VIJAYSHREE LTD.(SUPRA), WHEREIN IT WAS HELD THAT THE A.O. WAS NOT JUSTIFIED IN DISALLOWING THE BELATED DEPOSIT OF EMPLOYEES CONTRIBUTION AND ESI W HICH WERE PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME UNDER SECTION 1 39 OF THE IT ACT. SO, WE DECLINE TO INTERFERE IN THE ORDER PASSED BY LD. CIT(A), HIS ORDER ON THIS ISSUE, IS HEREBY UPHELD AND GROUNDS OF APPEAL RAISED BY THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 19.07.2019 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 19/07/2019 ( SB, SR.PS ) M/S NELLIMARLA JUTE MILLS COMPANY LTD. ITA NO.2599/KOL/2018 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-1(2), KOLKATA 2. M/S NELLIMARLA JUTE MILLS COMPANY LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES