DCIT, New Delhi V. M/s Samtex Fashions Ltd., New Delhi

ITA 2814/DEL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 7470 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 07-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Assessee Lawyers: PRAKASH NARAIN
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 2814/DEL/2010 ASSESSMENT YEAR: 2006-07 DCIT, CIRCLE 7(1), C.R. BLDG., I.P. ESTATE, NEW DELHI. VS. SAMTEX FASHIONS LTD., G-321, CHIRAG DELHI. NEW DELHI. AABCS3233M (APPELLANT) (RESPONDENT) APPELLANT BY : KISHORE B., SR. DR RESPONDENT BY: PRAKASH NARAIN, ADV. O R D E R PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DI RECTED AGAINST THE ORDER OF CIT(A) DATED 15.03.10 FOR A.Y. 2006-07. GROUNDS OF APPEAL READ AS UNDER: - 1. LD. CIT(A) ERRED, IN LAW AND ON THE FACTS AND C IRCUMSTANCES OF THE CASE, IN DELETING THE ADDITION OF RS. 10,06,110/- MADE BY THE AO U/S 36(1)(VA) OF THE I.T. ACT BEING LATE PAYMENT OF THE EMPLOYEES CONTRIBUTION TO PF/ESI. 2. THE APPELLANT CRAVES TO AMEND MODIFY, ALTER, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. THE RELEVANT PARTICULARS REGARDING THE BELATED P AYMENT OF RS. 10,06,110/- ARE TABULISED IN THE ORDER OF AO AS WEL L AS IN THE ORDER OF CIT(A) FOR THE SAKE OF CLARITY THE SAME IS BEING REPRODUCED BE LOW: - CONTRIBUTION AMOUNT DUE DATE PAID 2 ITA NO. 2814/DEL/2010 RECEIVED PF 244168/- 257040/- 281528/- 15/5/05 15/7/05 15/11/05 7/6/2005 23/8/05 28/11/05 ESI 40,544/- 40,476/- 42,975/- 51,159/- 48,219/- 21/5/05 21/6/05 21/7/05 21/8/05 21/11/05 7/6/05 27/7/05 23/8/05 9/9/05 28/11/05 TOTAL 10,06,110/- 3. THE DUE DATE OF FILING THE RETURN IN THE PRESENT CASE, AS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE, IS 30 TH SEPTEMBER, 2006. LD. CIT(A) HAS DELETED THE DISALLOWANCE ON THE GROUND THAT ALL THE PAYMENT S HAVE BEEN MADE BEFORE THE DUE DATE OF FILING THE RETURN AS PRESCRIBED U/S 139(1). 4. IN THIS FACTUAL BACKDROP WE HAVE HEARD BOTH THE PARTIES, AND FOUND THAT THIS ISSUE IS NOW FULLY COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306. IT WAS HELD BY HONBLE SUPREME COURT THAT THE OMISSION OF SECOND PROVISO T O SEC. 43B OF THE INCOME TAX ACT,1961, BY THE FINANCE ACT, 2003, OPERATED, R ETROSPECTIVELY, W.E.F. 1 ST APRIL, 1988 AND NOT PROSPECTIVELY FROM 1 ST APRIL, 2004. THE OMISSION OF THE SECOND PROVISO TO SEC. 43B OF THE INCOME TAX ACT, 1961, BY THE FINANCE ACT, 2003, OPE RATED, RETROSPECTIVELY, W.E.F 1 ST APRIL, 1988 AND NOT PROSPECTIVELY FROM 1 ST APRIL, 2004. EARLIER UNDER THE SECOND PROVISO TO SEC. 43B AS AME NDED BY THE FINANCE ACT, 1989, ASSESSES WERE ENTITLED TO DE DUCSTION ONLY IF THE CONTRIBUTION STOOD CREDITED ON OR BEFOR E THE DUE DATE GIVEN IN THE PROVIDENT FUNDS ACT. THIS CREATE D FURTHER DIFFICULTIES AND ON A REPRESENTATION MADE TO THE FI NANCE MINISTRY ONE MORE AMENDMENT WAS MADE BY THE FINANCE ACT, 2003. THOUGH THIS AMENDMENT WAS MADE APPLICAB LE 3 ITA NO. 2814/DEL/2010 WITH EFFECT FROM 1 ST APRIL, 2004, THE AMENDMENT WAS CURATIVE IN NATURE AND APPLIED RETROSPECTIVELY W.E.F. 1 ST APRIL, 1988. WHEN A PROVISO IN A SECTION IS INSERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE, THE PROVISO WHICH SUPPLIES AN OBVIOUS OMI SSION THEREIN IS REQUIRED TO BE READ RETROSPECTIVELY IN O PERATION, PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHO LE. 5. IN THIS VIEW OF THE SITUATION, AS ALL THE PAYMEN TS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING THE RETURN, WE FOUND NO INFI RMITY IN THE ORDER OF CIT(A) VIDE WHICH THE IMPUGNED ADDITION HAS BEEN DELETED. WE D ECLINE TO INTERFERE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.8.10 (SHAMIM YAHYA) ACCOUNTANT MEMBER (I.P. BANSAL) JUDICIAL MEMBER DATED: 13.8.10 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR