PRAKASH STEELAGE LTD, MUMBAI V. ACIT 5(2), MUMBAI

ITA 4473/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7291 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 28-07-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 80IB; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI D.MANMOHAN, VICE PRESIDENT & SHRI R.K.PANDA, AM I.T.A. NO. 4473/MUM/2009 (ASSESSMENT YEAR 2005-06) M/S. PRAKASH STEELAGE LTD. 101, SHATRUNJAY APARTMENT, 1 ST FLOOR, 28, SINDHI LANE, NANUBHAI DESAI ROAD, MUMBAI-400 006 PAN:AAACP6673K VS. ACIT-5(2) 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 APPELLANT RESPONDENT APPELLANT BY : SHRI RAJKUMAR SINGH RESPONDENT BY : SHRI S.M. KESH KAMAT ORDER DATE OF HEARING: 29.03.2010 DATE OF ORDER: 29.03.2010 PER R.K.PANDA, AM , THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 23 RD JUNE, 2009 OF THE CIT(A)-V, MUMBAI RELATING TO ASSESSMENT YEAR 2005-06. 2. GROUNDS OF APPEAL NO. 1 BY THE ASSESSEE READS AS UN DER: 1(A). THAT ON FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. ASSESSING OFFICER AS WELL AS LD. CIT(A) HAVE ERRED IN NOT ALLOWING THE DEDUCTION CLAIMED U/S.80IB IN RESPECT OF THE DUTY DRAW BACK/DEPB RECEIPTS OF RS.132,46,339/- ERRONEOUSLY HOLDING THE SAID RECEIPT NOT BEING ELIGIBLE FOR CLA IM OF DEDUCTION U/S. 80IB AS NOT BEING DERIVED FROM THE BUSINESS OF THE INDUSTRIAL UNDERTAKING. 1(B). THAT WHILE UPHOLDING THE DISALLOWANCE OF DUT Y DRAW BACK/DEPB RECEIPT U/S. 80IB MADE BY THE LD. AO , THE LD. CIT(A) HAS ERRED IN NOT FOLLOWING THE RECEN TLY PRONOUNCED BINDING JUDGEMENTS OF HONBLE HIGH COURT ITA NO. 4473/MUM/2009 M/S. PRAKASH STEELAGE LTD. ======================= 2 & TRIBUNAL DIRECTLY ON THE ISSUE INVOLVED, RELIED U PON BY THE APPELLANT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY CONCEDE D THAT THE ABOVE GROUND IS AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE DECISION OF HONBLE SUPREME COURT IN THE CAS E OF LIBERTY INDIA VS. CIT REPORTED IN 317 ITR 218. IN VIEW OF THE AB OVE SUBMISSION BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE GROUND R AISED BY THE ASSESSEE IS DISMISSED 4. GROUNDS OF APPEAL NO. 2 RAISED BY THE ASSESSEE IS A S UNDER: 2. THAT THE LD. AO & LD. CIT(A) BOTH HAVE ERRED IN NOT ALLOWING THE EMPLOYEES PF CONTRIBUTION OF RS.32,372/- WHICH ARE THOUGH HAVE BEEN PAID BEYOND THE DUE DATE PRESCRIBED UNDER THE RELEVANT PF ACT B UT MOSTLY BEFORE THE END OF FINANCIAL YEAR AND MUCH BE FORE THE DUE DATE PRESCRIBED FOR FILING THE RETURN U/S. 139(1) OF THE I.T. ACT, 1961. 5. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF RS.65,259 U/S. 43B(B) ON AC COUNT OF DELAYED PAYMENT OF EMPLOYEES PF CONTRIBUTION AFTER THE DUE DATE. IN APPEAL, THE LEARNED CIT(A) DELETED AN AMOUNT OF RS.32,370 WHICH HAS BEEN PAID WITHIN THE GRACE PERIOD ALLOWED BY TH E PF ACT. HOWEVER, HE SUSTAINED THE AMOUNT OF RS.32,372 ON TH E GROUND THAT THE SAME HAS NOT BEEN PAID WITHIN THE GRACE PERIOD. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THE AMOUNT HAS BEEN PAID BEFORE THE END OF THE RELEVANT FINANCIAL YEAR, THE SAME SHOULD BE ALLOWED AS A DEDUCTION. 6. WE FIND THE CO-ORDINATE BENCHES OF THE TRIBUNAL FOL LOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CA SE OF DHARMENDRA SHARMA REPORTED IN 297 ITR 320 AND THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SABARI ENTERPRISES REPORTED IN 298 ITR 141 ARE TAKING THE VIEW THAT IF THE AMOUNT IS PAID BEFORE THE DUE DATE FOR FURNISHING THE RETURN U/S. 139(1) OF THE ITA NO. 4473/MUM/2009 M/S. PRAKASH STEELAGE LTD. ======================= 3 ACT, THEN SUCH PAYMENT IS DEDUCTIBLE AS AN ALLOWABL E EXPENDITURE. SINCE IN THE INSTANT CASE THE ASSESSEE HAS ADMITTED LY MADE THE PAYMENT BEFORE THE END OF THE FINANCIAL YEAR ITSELF , THEREFORE, FOLLOWING THE ABOVE TWO DECISIONS, WE HOLD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION OF THE AMOUNT OF RS.32,372. WE HOLD AND DIRECT ACCORDINGLY. THIS GROUND BY THE ASSESSEE I S ACCORDINGLY ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED ON 29 TH MARCH, 2010 SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 29 TH MARCH, 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-V, MUMBAI 4. THE CIT, MC-V, MUMBAI 5. THE DR C BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO