Jai Ambika SSK Ltd., V. ITO,

ITA 428/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3399 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DHAMLE
• Assessee Lawyers: S N DOSHI
• Keywords: Principle of natural justice
• Section: 43B; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 428/PN/2009 ( A.Y. 2005-06) JAI AMBIKA SSK LTD., MOHAN NAGAR, KUNTUR,TAL NAIGAON, DIST. NANDED, PAN : AAAAJ0481H .. APPELLANT V. ITO, WARD 3(1), NANDED . RESPONDENT APPELLANT BY : SHRI S.N. DOSHI RESPONDENT BY : SHRI ABHAY DHAMLE ORDER PER D. KARUNAKARA RAO AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER OF THE CITA)- , AURANGABAD DATED 04.12.2008 FOR THE A.Y. 20 05-06. 2. THE SOLITARY GROUND READS AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT(A) HAS ERRED IN DISALLOWING THE UNPAID LIABILITY ON ACCOUNT OF PROVIDENT FUND RELYING ON THE JUDGEMENT OF BOMBAY HIGH COURT IN THE CASE OF GODAVARI MANAR SSK LTD. THE ABOVE GROUND MAY KINDLY BE ALLOWED TO BE AMENDED, ALTERED , MODIFIED ETC, IN THE INTEREST OF NATURAL JUSTICE. 3. AT THE OUTSET, THE LD COUNSEL FOR THE ASSESSEE EX PLAINED THAT THE GROUND RELATES TO DISALLOWANCE OF UNPAID LIABILITY ON ACCOU NT OF PF. FURTHER, HE MENTIONED THAT THE MATTER HAS TO BE NOW DECIDED IN THE LIGHT O F THE SUPREME COURT JUDGMENT IN THE CAST OF CIT V/S. ALOM EXTRUSIONS LTD, 319 ITR 306. ON THE OTHER HAND, THE LD. D.R. FOR THE REVENUE RELIED ON THE ORDERS OF THE R EVENUE AND MENTIONED THAT THE MATTER MAY BE REFERRED TO THE FILES OF THE A.O FOR DECIDING THE ISSUE AFTER EXAMINING THE FACTS RELATING TO THE DATES OF THE PAY MENTS OF THE IMPUGNED AMOUNT. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE. FROM THE ORDERS, IT IS NOTICED THAT THERE ARE NO DETAILS OF EXACT DATES OF THE PAYMENT TO THE SAID LIABILITIES . IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION ITA NO 428/PN/2009 JAI AMBIKA S.S.K. LTD., A.Y.2005-06 PAGE OF 3 2 THAT THE MATTER HAS TO GO TO THE FILE OF THE A.O FOR DECIDING THE ISSUE AFRESH AFTER ASCERTAINING THE DATES OF PAYMENTS TO THE P.F. AND D ECIDE THE ISSUE IN THE LIGHT OF THE AFORESAID JUDGMENT IN THE CASE OF ALUM EXTRUSIONS LTD. (SUPRA). THE HELD PORTION OF THE ORDER IS REPRODUCED BELOW : THE OMISSION OF THE SECOND PROVISO TO SECTION 43B OF THE INCOME-TAX ACT, 1961, BY THE FINANCE ACT, 2003, OPERATED, RETROSPEC TIVELY, WITH EFFECT FROM APRIL 1, 1988 AND NOT PROSPECTIVELY FROM APRIL 1, 2 004. EARLIER UNDER THE SECOND PROVISO TO SECTION 43B AS AMENDED BY THE FINANCE ACT, 1989, ASSESSES WERE ENTITLED TO DEDUCTION ONLY IF THE CONTRIBUTION STOOD CREDITED ON OR BEFORE THE DUE DATE GIVEN IN THE PRO VIDENT FUNDS ACT. THIS CREATED FURTHER DIFFICULTIES AND ON A REPRESENTATIO N MADE TO THE FINANCE MINISTRY ONE MORE AMENDMENT WAS MADE BY THE FINANCE ACT, 2003. THOUGH THIS AMENDMENT WAS MADE APPLICABLE WITH EFFECT FROM APRIL 1, 2004, THE AMENDMENT WAS CURATIVE IN NATURE AND APPLIED RETROS PECTIVELY WITH EFFECT FROM APRIL 1, 1988. WHEN A PROVISO IN A SECTION IS INSERTED TO REMEDY U NINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE, THE PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION THEREIN IS REQUIRED TO BE REAL RETROSPECTI VELY IN OPERATION, PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHO LE. IT IS NOW SETTLED LAW THAT THE UNPAID LIABILITIES O F PF HAS TO BE DECIDED IN ACCORDANCE WITH THE ABOVE CITED SUPREME COURTS JUDGMENT. AFTER T HE JUDGMENT, ALL THE PAYMENTS MADE IN THIS REGARD BEFORE FILING OF THE RETURN OF INCOME HAVE TO BE ALLOWED AS DEDUCTION. IN VIEW OF THE ABOVE, WE SE T ASIDE THE ABOVE GROUND OF THE ASSESSEE TO THE FILE OF A.O. FOR DECIDING THE ISSUE AFRESH AFTER ASCERTAINING THE DATES OF PAYMENTS TO PF IN THE LIGHT OF THE AFORESAID JUDG MENT. GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH AUGUST, 201 0 SD/- SD/- (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE, DATED THE 13TH AUGUST, 2010 US ITA NO 428/PN/2009 JAI AMBIKA S.S.K. LTD., A.Y.2005-06 PAGE OF 3 3 COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT, AURANGABAD 4. THE CIT(A)- AURANGABAD 4. THE D.R. A BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE