Navneet Memorial Hospital, Ahmedabad V. The Income tax Officer,Ward-9(3), Ahmedabad

ITA 2684/AHD/2010

• Counselvise Citation: 268420514 RSA 2010
• Duration Of Justice: 2 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 15-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J P THANGID
• Assessee Lawyers: P M PATEL
• Section: 43B; 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI A. MOHAN ALANKAMONY, AM AND SHRI KUL B HARAT, JM) ITA NO.2684/AHD/2010 ( A. Y.2004-05) NAVNEET MEMORIAL HOSPITAL, SUSHRUSHA, OPP. TELEPHONE EXCHANGE, NR. SARDAR PATEL SEVA SAMAJ, NVRANGPURA, AHMEDABAD P. A. NO. AACFM 4811 E VS THE INCOME TAX OFFICER, WARD 9(3), NEW AAYAKAR BHAVAN, OPP. POLYTECHNIC PANJARAPOLE, AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. M. PATEL, AR RESPONDENT BY SHRI J. P. THANGID, SR. DR DATE OF HEARING: 16-07- 2013 DATE OF PRONOUNCEMENT: 14-08-2013 O R D E R PER A. MOHAN ALANKAMONY: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LEARNED CIT( A)-XV, AHMEDABAD DATED 06-08-2010, FOR THE ASSESSMENT YEARS 2004-05 IN APPEAL NO. CIT(A)-XV/ITO/9(3)/128/09-10, PASSED U/S 250 READ W ITH SECTION 143(3) AND 147 OF THE INCOME TAX ACT, 1961. 2. THE SOLE SURVIVING GROUND NO.1 RAISED BY THE ASS ESSEE IS REPRODUCED HEREIN UNDER FOR REFERENCE:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-XV, AHMEDABAD IS NOT JUSTIFIED IN CONFIRMING THE DISALL OWING RS.1,15,636.00 EMPLOYEES CONTRIBUTION IS NOT PAID B EFORE THE DUE DATE MENTIONED IN THE PROVIDENT FUND ACT, BUT PAID BEFORE THE ITA NO.2684/AHD/2010(AY-2004-05) NAVNEET MEMORIAL HOSPITAL VS ITO, W 9(3),AHMEDABAD 2 DUE DATE MENTIONED IN INCOME TAX ACT, FOR ASSESSMEN T YEAR 2004-05. 3. THE ASSESSEE FIRM ENGAGED IN THE BUSINESS OF HOS PITAL FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2004-05 ON 01-11-2004 DECLARING TOTAL INCOME OF RS.2,59,850/-. THE CASE W AS SELECTED FOR SCRUTINY AND ASSESSMENT ORDER U/S 143(3) OF THE ACT WAS PASSED BY THE LEARNED AO ON 17-11-2006 DETERMINING TOTAL INCOME O F THE ASSESSEE AT RS.3,33,347/-. SUBSEQUENTLY, THE CASE WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE ACT AND ASSESSMENT ORDER U/S 143(3) READ WITH SECTION 147 OF THE ACT WAS PASSED BY THE LEARNED AO ON 27-1 0-2009 RE- COMPUTED THE INCOME OF THE ASSESSEE AT RS.4,48,980/ - WHEREIN ADDITION OF RS.1,15,636/- WAS MADE BY THE LEARNED AO ON ACCO UNT OF DISALLOWANCE U/S 36(1)(VA) READ WITH SECTION 2 (24) (X) OF THE ACT FOR NON- PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PROVIDEN T FUND IN THE GOVERNMENT TREASURY WITHIN THE DUE DATE SPECIFIED I N THE RESPECTIVE ACT. 4. WHEN THE MATTER CREPT IN BEFORE THE LEARNED CIT( A), THE LEARNED CIT(A) CONFIRMED THE ADDITION MADE BY THE LEARNED A O BY OBSERVING IN PARA 4 OF HIS ORDER AS UNDER: 4. AFTER GOING THROUGH RIVAL SUBMISSIONS THE ADDIT ION MADE BY THE AO IS CONFIRMED BECAUSE THIS IS THE CASE OF THE AMO UNT OF EMPLOYEES CONTRIBUTION TO PF OF RS.1,15,636 WHICH HAS BEEN AD DED CORRECTLY BY THE AO BECAUSE IT IS COVERED U/S. 36(1(VA) R. W. S. 2(2 4) OF THE ACT WHEREAS THE LD. AR IS ARGUING TREATING EMPLOYEE CONTRIBUTIO N AS EMPLOYERS CONTRIBUTION AND THE TWO ARE DISTINCT. SECTION 43B IS NOT APPLICABLE IN THIS CASE BECAUSE IT PERTAINS TO EMPLOYERS CONTRIB UTION. AGAINST THIS ORDER OF THE LEARNED CIT(A), THE ASSES SEE IS NOW IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING BEFORE US, THE LEARNED AR SUBMITTED THAT THE ISSUE IS NOW COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN ITA NO.2684/AHD/2010(AY-2004-05) NAVNEET MEMORIAL HOSPITAL VS ITO, W 9(3),AHMEDABAD 3 THE CASE OF CIT VS ALOM EXTRUSIONS LTD. REPORTED IN (2009) 319 ITR 306 (SC) / 185 TAXMAN 416 (SC) IN FAVOUR OF THE ASSESSE E AND AGAINST THE REVENUE, A COPY WHEREOF IS PLACED ON RECORD. THE LE ARNED AR ALSO FURNISHED THE DETAILS OF PROVIDENT FUND PAID DURING THE ASSESSMENT YEAR 2003-04. IT WAS SUBMITTED THAT THE ENTIRE AMOUNT WA S PAID WELL BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME AND ACCO RDINGLY HE PRAYED THAT THE ADDITION MAY BE DELETED. WHILE AS, THE LEARNED DR RELIED ON THE ORDER OF THE LEARNED CIT(A) AND THE LEARNED AO. 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND CAREFULLY CONSIDERED THE MATE RIALS PRODUCED BEFORE US. ON OUR PERUSAL OF RECORDS WE FIND THAT AS ARGUE D BY THE LEARNED AR THE ISSUE IS NOW COVERED BY THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF CIT VS ALOM EXTRUSIONS LTD., SUPRA, WHE REIN IT HAS BEEN HELD AS UNDER:- CONTRIBUTION TO PROVIDENT FUND, MADE BEFORE DUE DA TE OF FILING OF RETURN ALLOWABLE AS DEDUCTION. THE DELETION OF THE SECOND PROVISO TO SECTION 43B, AND THE AMENDMENT TO THE FIRST PROVISO, BY THE FINANCE ACT, 2003 WAS TO OVERCOME IMPLEMENTATION PROBLEMS. CONSEQUENT LY, THE AMENDMENTS, THOUGH MADE APPLICABLE BY PARLIAMENT ON LY WITH EFFECT FROM 1-4-2004, WERE CURATIVE IN NATURE AND WOULD AP PLY RETROSPECTIVELY W. E .F. 1-4-1988. ACCORDINGLY, WE HEREBY SET ASIDE THE ORDER OF THE L EARNED CIT(A) AND REMIT BACK THE MATTER TO THE FILE OF THE LEARNED A O TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AND IN THE LIGHT OF T HE DECISION OF THE HONBLE APEX COURT AFTER VERIFICATION OF THE DATES OF PAYMENTS MADE BY THE ASSESSEE. ITA NO.2684/AHD/2010(AY-2004-05) NAVNEET MEMORIAL HOSPITAL VS ITO, W 9(3),AHMEDABAD 4 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14-8-2013 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: DIRECT ON COMPUTER 16-07-20 13/13-08-13 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 16-07-2013/13-08-13 OTHER MEMBER : 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: