ADDL CIT 3(1), MUMBAI V. AL-KABEER EXPORTS P.LTD, MUMBAI

ITA 5192/MUM/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0702 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Section: 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.5192/MUM/2012 / ASSESSMENT YEAR 2008-09 THE ACIT, CIR.3(1), ROOM NO.607, AAYKAR BHAVAN, MUMBAI 400 020 / VS. M/S. AL-KABEER EXPORTS PVT. LTD., 91, JOLLY MAKER CHAMBERS NO.2, NARIMAN POINT, MUMBAI 400 021. ./ ./ PAN/GIR NO. : AABCA 0500H ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI NEIL PHILIP RESPONDENT BY SHRI JITENDRA SANGHAVI ! ' / DATE OF HEARING : 28/05/2015 ! ' / DATE OF PRONOUNCEMENT : 28/05/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-5, MUMBAI DATED 1/6/2012 FOR A SSESSMENT YEAR 2008-09. GROUNDS OF APPEAL READ AS UNDER: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.13,94,316/ -, MADE ON ACCOUNT OF DISALLOWANCE OF EMPLOYEE'S CONTRIBUTION TO PROVIDENT FUND SINCE THE PAYMENTS WERE MADE AFTER THE DUE DATES, HOLDING THAT THE PAYMENTS HAVE BEEN MADE WIT HIN GRACE PERIOD, WITHOUT APPRECIATING THE FACT THAT IN VIEW OF THE DECISION OF HON'BLE 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 U/ S.36(1)(VA ) IN RESPECT OF EMPLOYEES CONTRIBUTION TO P.F. IF IT IS PAID AFTER DUE DATE AS SPECIFIED I N EXPLANATION TO SECTION 36(1)(VA) ON THE BASIS OF PROVISIONS OF SECTION 43B BECAUSE SAID SEC TION COMES INTO PLAY ONLY WHEN A DEDUCTION IS OTHERWISE ALLOWABLE UNDER ACT.'. . / ITA NO.5192/MUM/2012 / ASSESSMENT YEAR 2008-09 2 2. THE IMPUGNED AMOUNT OF RS.13,94,316/- AS PER PA RA 4.1 OF THE ORDER OF LD. CIT(A) IS PAID BY THE ASSESSEE AS PER FOLLOWING CHART: PARTICULARS AMOUNT(RS.) PAYMENTS MADE BEFORE DUE DATE OF FILING OF RETURN 3,63,548 PAYMENTS MADE WITHIN THE DUE DATES PRESCRIBED UNDER RELEVANT ACTS. 10,30,768 2.1 THUS, IT CAN BE SEEN THAT ALL THE IMPUGNED AMOU NT HAS BEEN PAID BEFORE DUE DATE OF FILING THE RETURN. ON THESE FACTS, IT WAS SUBMITTED BY LD. AR THAT THIS IS NOW COVERED BY THE DECISION OF HONBLE BOMB AY HIGH COURT IN THE CASE OF CIT VS. GHATGE PATIL TRANSPORT LTD., 368 ITR 749 , WHEREIN THEIR LORDSHIPS HAVE HELD THAT BOTH THE EMPLOYEES AND EMPLOYERS CON TRIBUTION ARE COVERED UNDER THE AMENDMENT TO SECTION 43B AND ALLOM EXTRU SION LTD., 319 ITR 306. THEREFORE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT P AYMENT THEREOF MADE ARE SUBJECT TO BENEFIT OF SECTION 43B. 3. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, WE ARE OF THE OPINION THAT LD. CIT(A) DID NOT COMMIT ANY ERROR IN GRANTING IMPUGNED RELIEF TO THE ASSESSEE. WE DECLINE TO INTERFERE AND THIS APP EAL FILED BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/05/20 15 () * + 28/05/2015 SD/- SD/- ( , / RAJENDRA) ( . . / I.P. BANSAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( MUMBAI; * DATED 28/05/2015 . / ITA NO.5192/MUM/2012 / ASSESSMENT YEAR 2008-09 3 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. .! ( ) / THE CIT(A)- 4. .! / CIT 5. /0 !12 , ' 12 , ( / DR, ITAT, MUMBAI 6. 3 / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI . . ./ VM , SR. PS