DCIT, Kollam V. JAISON G OOMMEN, Kollam

ITA 262/COCH/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64763 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 18-04-2011
• Court: TRIBUNAL
• Department Lawyers: VANI RAJ
• Keywords: Proportionate interest
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NOS. 262, 263 & 264/COCH/2011 ASSESSMENT YEARS: 2002-03, 2006-07 & 2007-08 THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOLLAM. VS. SHRI JAISON G.OOMMEN, M/S. ST. MARYS CASHEW FACTORY, PUTHOOR, KOTTARAKARA. [PAN: AAEPO 3332K] (REVENUE-APPELLANT) (ASSESSEE-RESPONDEN T) REVENUE BY MS. VANI RAJ, JR. DR ASSESSEE BY NONE DATE OF HEARING 09/08/2012 DATE OF PRONOUNCEMENT 24/08/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THESE APPEALS FILED BY THE REVENUE ARE DIRECTE D AGAINST THE ORDERS DATED 04-01-2011 PASSED BY THE LD. CIT(A)-I, TRIVANDRUM A ND THEY RELATE TO THE ASSESSMENT YEARS 2002-03, 2006-07 AND 2007-08. NONE APPEARED ON BEHALF OF THE ASSESSEE AND HENCE, WE PROCEED TO DISPOSE OFF THESE APPEALS EX P ARTE, QUA THE ASSESSEE. SINCE ONE OF THE ISSUES URGED IN THESE APPEALS IS IDENTICAL I N NATURE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER. 2. THE COMMON ISSUE RELATES TO THE DECISION OF THE LD. CIT(A) IN ALLOWING DEDUCTION OF EMPLOYEES CONTRIBUTIONS TO PF, ESI AND WELFARE F UNDS. I.T.A. NOS. 262, 263 & 264 /COCH/2011 2 3. ACCORDING TO THE LD. DR, THE PROVISO TO SEC. 43B SHALL APPLY ONLY TO PAYMENT OF EMPLOYERS CONTRIBUTIONS TO PF AND ESI, WHICH IS NOT APPLICABLE TO EMPLOYEES CONTRIBUTION. THE LD D.R FURTHER SUBMITTED THAT, I N ORDER TO CLAIM DEDUCTION OF EMPLOYEES CONTRIBUTIONS, THE ASSESSEE SHOULD HAVE PAID THE AMOUNT BEFORE THE DUE DATES PRESCRIBED IN THE RESPECTIVE STATUTES AS PER THE PROVISION OF SEC. 36(1)(VA) OF THE ACT. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD. THE ISSUE RELATING TO EMPLOYEES CONTRIBUTIONS TO PF & ESI HAS BEEN SETTLE D BY THE HONBLE SUPREME COURT IN THE CASE OF VINAY CEMENTS 213 CTR 268 WHICH WAS ALS O FOLLOWED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DHARMENDRA SHARMA , 297 ITR 320. ACCORDING TO THESE DECISIONS, THE EMPLOYEES CONTRIBUTIONS TO PF AND ESI PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME ARE ELIGIBLE FOR DE DUCTION U/S. 43B OF THE ACT. SIMILAR VIEW HAS ALREADY BEEN TAKEN BY THE CO-ORDINATE BENC H OF THIS TRIBUNAL IN THE CASES OF KERALA RUBBER AND RECLAIMS LTD. VS. ACIT, PARRY AGR O INDUSTRIES VS. ACIT AND HARRISON MALAYALAM LTD. VS. ACIT. WE NOTICE THAT THE DECI SION TAKEN BY LD CIT(A) IS IN ACCORDANCE WITH THE DISCUSSIONS MADE SUPRA. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF THE LD. CIT(A) ON THIS ISSUE. 5. IN THE APPEAL FOR THE ASSESSMENT YEAR 2007-08, T HE REVENUE HAS RAISED ONE MORE GROUND RELATING TO THE DELETION OF DISALLOWANC E OF THE PROPORTIONATE INTEREST ON FUNDS DIVERTED FOR NON-BUSINESS PURPOSE. THE ASSES SING OFFICER DISALLOWED A SUM OF RS. 57,55,810/- AS INTEREST RELATABLE TO FUNDS DIVERTED FOR NON-BUSINESS PURPOSE. HOWEVER, THE LD. CIT(A) DELETED THE SAME WITH THE OBSERVATIO N THAT THE ASSESSEE IS HAVING SUFFICIENT CREDIT BALANCE IN THE CAPITAL ACCOUNT. HOWEVER, BEFORE US, NO MATERIAL WAS PLACED IN SUPPORT OF THE OBSERVATION MADE BY THE LD . CIT(A). IN THE ABSENCE OF ANY MATERIAL, WE HAVE NO OTHER OPTION BUT TO CONFIRM TH E ADDITION MADE BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) ON THIS ISSUE IS SET ASIDE. I.T.A. NOS. 262, 263 & 264 /COCH/2011 3 6. IN THE RESULT, THE APPEALS OF REVENUE FOR THE AS SESSMENT YEARS 2002-03 AND 2006-07 ARE DISMISSED AND THE APPEAL RELATING TO TH E ASSESSMENT YEAR 2007-08 IS PARTLY ALLOWED. PRONOUNCED ACCORDINGLY O N 24-08-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 24TH AUGUST, 2012 GJ COPY TO: 1. SHRI JAISON G.OOMMEN, M/S. ST. MARYS CASHEW FAC TORY,PUTHOOR, KOTTARAKARA. 2.THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CI RCLE, KOLLAM. 3.THE COMMISSIONER OF INCOME-TAX(APPEALS)-I, TRIVAN DRUM. 4.THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN