ITO 3(2)(2), MUMBAI V. META COPPER & ALLOYS LTD, MUMBAI

ITA 3028/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3941 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 19-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESHWARI MOTWANI
• Assessee Lawyers: N O N E
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI , , BEFORE SHRI B R BASKARAN , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER ITA NO. 3028 /MUM/201 3 (ASSESSMENT YEAR 200 9 - 1 0 ) INCOME TAX OFFICER 3(2)(2), R. NO.473, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400 020 VS M/S META COPPER & ALLOYS LTD, 36 - 37, MITTAL CHAMBERS, NARIMAN POINT, MUMBAI - 400 021 PAN: AAACM 7357 B (APPELLANT) (RESPONDENT) APPELLANT BY : SMT RAJESHWARI MOTWANI RESPONDENT BY : N ONE /DATE OF HEARING : 0 3 - 0 5 - 201 6 /DATE OF PRONOUNCEMENT : 0 3 - 0 5 - 2016 ORDER , . : - PER AMIT SHUKLA, J. M. : T HE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE IMPUGNED ORDER OF THE CIT(A) - 4 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) R.W.S. 1 47 FOR THE ASSESSMENT YEAR 200 9 - 1 0 ON THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.36,87,599/ - , MADE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND WITHOUT APPRECIATING THE FACT THAT IN VIEW OF THE DE CISION OF HONBLE ITAT C BENCH KOLKATA IN THE CASE OF BENGAL CHEMICAL AND PHARMACEUTICALS LTD (11 TAXMANN.COM 328) (2011), THE ASSESSEE IS NOT ENTITLED TO DEDUCTION 2 M/S META COPPER & ALLOYS LTD ITA NO. 3028 /MUM/2013 U/S 36(1)(VA) IN RESPECT OF EMPLOYEES CONTRIBUTION TO PF/ESIC IF IT IS PAID AFTER DUE DAT E AND SPECIFIED IN EXPLANATION TO SECTION 36(1)(VA) ON THE BASIS OF PROVISIONS OF SECTION 43B, BECAUSE SAID SECTION COMES INTO PLAY ONLY WHEN A DEDUCTION IS OTHERWISE ALLOWABLE UNDER ACT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, T HE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.36,87,599/ - , MADE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND BY PLACING RELIANCE ON THE DECISION OF SUPREME COURT IN THE CASE OF M/S ALOM EXTRUSIONS LTD WITHOUT APPRECIATING THAT THE F ACTS OF THE CASE ARE DISTINGUISHABLE FROM THE FACTS OF THE INSTANT CASE. 2. DESPITE SERVICE OF NOTICE TO THE ASSESSEE, NONE APPEARED ON BEHALF OF THE ASSESSEE, ACCORDINGLY, APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL ON RECORD AND ARGUMENT PLACED B Y THE LD. DR. 3. THE SOLE ISSUE FOR DISALLOWANCE MADE BY THE AO IS THAT, ASSESSEE HAS MADE CERTAIN PAYMENTS TOWARDS EMPLOYEES CONTRIBUTION TO PF TO THE GOVERNMENT ACCOUNT AFTER THE DUE DATE OF PAYMENT AS PER PROVIDENT FUND/ESIC ACT. THE ASSESSEES CLAIM HAS BEEN THAT, ALL THE PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME UNDER SECTION 139(1) THEREFORE, THE SAME ARE ALLOWABLE UNDER SECTION 43B . 4. THE RELEVANT DETAILS OF PAYMENT DEPOSITED ; DUE DATE S UNDER THE PRESCRIBED ACT AND THE ACTUAL DATE OF PAYMENT S A RE AS UNDER: - 3 M/S META COPPER & ALLOYS LTD ITA NO. 3028 /MUM/2013 EMPLOYEES CONTRIBUTION TO PROVIDENT FUND (GOA): SERIAL NO. MONTH EMPLOYEES CONTRIBUTION DEPOSITED DUE DATE ACTUAL DATE OF PAYMENT 1 APR 2008 462,822 15 - MAY - 08 17 - MAY - 08 2 MAY 2008 508,562 15 - JUN - 08 16 - JUN - 08 3 JUN 2008 481,276 15 - JUL - 08 16 - JUL - 08 4 JUL 2008 487,125 15 - AUG - 08 19 - AUG - 08 5 AUG 2008 479,447 15 - SEPT - 08 16 - SEP - 08 6 DEC 2008 470,516 15 - JAN - 09 17 - JAN - 09 7 FEB 2008 476,406 15 - MAR - 09 16 - MAR - 09 8 MAR 2009 468,312 15 - APR - 09 17 - APR - 09 EMPLOYEES CONTRIBUTION TO PROVIDENT FUND (MUMBAI): SERIAL NO. MONTH EMPLOYEES CONTRIBUTION DEPOSITED DUE DATE ACTUAL DATE OF PAYMENT 1 MAY 2008 62,855 15 - JUN - 08 04 - AUG - 08 2 JUN 2008 61,890 15 - JUL - 08 04 - AUG - 08 3 AUG 2008 72,213 15 - SEPT - 08 16 - SEP - 08 4 SEP 2008 72,213 15 - OCT - 08 16 - OCT - 08 EMPLOYEES CONTRIBUTION TO ESIC FUND (GOA): SERIAL NO. MONTH EMPLOYEES CONTRIBUTION DEPOSITED DUE DATE ACTUAL DATE OF PAYMENT 1 APR 2008 32,428 21 - MAY - 08 23 - MAY - 08 2 JUL 2008 30,961 21 - AUG - 08 22 - AUG - 08 THE DUE DATE OF FILING OF RETURN OF INCOME WAS 30 TH SEPTEMBER, 2009 AND ASSESSEE HAD FILED ITS RETURN OF INCOME ON 29.09.2009. THUS, ALL THESE PAYMENTS WERE MUCH BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. 5. THE LD. CIT(A) HAS DELETED THE SAID DISALLOWANCE AFTER OBSERVING AND HOLDING AS UNDER: - I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE ASSESSEE. THE AO HAS DISALLOWED PAYMENT OF EMPLOYEES CONTRIBUTION TO PF/ESIC WHICH HAVE BEEN MADE AFTER THE DUE DATES BUT BEFORE FILING OF RETURN, WHEREAS NOW THE ISSUE HAS FINALLY BEEN SETTLED BY HONBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS ( SUPRA ) AND IT HAS BEEN HELD THAT ANY SUCH CONTRIBUTION DEPOSITED BEFORE FILING OF RETURN IS TO BE ALLOWED. AS PER TH E COPY OF THE RELEVANT DETAIL FILED BY THE ASSESSEE, THE ENTIRE AMOUNT HAS BEEN PAID BEFORE FILING OF RETURN OF 4 M/S META COPPER & ALLOYS LTD ITA NO. 3028 /MUM/2013 RETURN. THEREFORE, AO IS DIRECTED TO VERIFY THE SAME AND ALLOW THE ASSESSEE ALL THOSE AMOUNTS RELATING TO PF/ESIC WHICH HAVE BEEN PAID BEFORE FI LING OF RETURN. IF NECESSARY, THE AO CAN ASK THE ASSESSEE TO FILED THE SAID DETAILS AGAIN. IN THE RESULT, THE GROUND OF APPEAL IS ALLOWED. 6. WE FIND THAT, HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS GHATGE PATIL TRANSPORTERS LTD., REPORTED IN [2014] 368 ITR 0749, AFTER FOLLOWING THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ALOM EXTRUSION (319 ITR 306) HELD THAT IF THE EMPLOYEES CONTRIBUTION TO THE PF OR ESIC FUND HAS BEEN MADE BEFORE THE DUE DATE OF FILING OF RETURN UNDER SECTION 139( 1), THEN SAME SHOULD BE ALLOWED AS DEDUCTION UNDER SECTION 43B. ACCORDINGLY, FOLLOWING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT, WE AFFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUNDS RAISED BY THE DEPARTMENT. 7. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MAY, 2016 SD/ - SD/ - ( ) ( ) (B R BASKARAN ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 3 RD MAY , 2016 /COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT(A) - 4, MUMBAI. 4 ) THE COMMISSIONER OF INCOME TAX - 3, MUMBAI. 5 ) , , / THE D.R. B BENCH, MUMBAI. 5 M/S META COPPER & ALLOYS LTD ITA NO. 3028 /MUM/2013 6 ) \ COPY TO GUARD FILE. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN, SR.PS