ACIT, Circle-30, Kolkata, Kolkata V. M/s Agarwal Marketing and services, Kolkata

ITA 560/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7939 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 11-04-2012
• Court: TRIBUNAL
• Department Lawyers: K K DAS
• Assessee Lawyers: N AGARWAL
• Keywords: Business expenditure; Question of law
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND ! ! ! ! , '# ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SANJAY ARORA, AM] $ $ $ $ / I.T.A NO. 560/KOL/2012 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2008-09 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. M/S. AG ARWAL MARKETING AND SERVICES CIRCLE-30, KOLKATA. (PAN: AAJFA0779M) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI K. K. DAS FOR THE RESPONDENT: SHRI N. AGARWAL DATE OF HEARING: 07.08.2012 DATE OF PRONOUNCEMENT: 07.08.2012 '. / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 7 TH AUGUST, 2012, THE BENCH PASSED THE FOLLOWING ORDER: 7 TH AUGUST, 2012 APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED I N OPEN COURT. DETAILED ORDER WILL FOLLOW. PER BNCH: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XIV, KOLKATA IN APPEAL NO. 127/CIT(A)-XIV/KOL/10-11 DATED 25.01.2012. ASSESSME NT WAS FRAMED BY ACIT, CIRCLE-30, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORDER DATED 20.10 .2010. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) IN ALLOWING DEDUCTION CLAIMED ON ACCOUNT OF EMPLOYEES CONTRIBU TION TO PF. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION CLAIMED ON ACCOUNT OF EMPLOYEES CONTRIBU TION TO PF BEYOND (AS SPECIFIED IN PF ACT) SINCE EXPLANATION OF PROVISION OF SECTION 36(1 )(VA) READ WITH SECTION 2(24)(X) CLEARLY STIPULATES THAT PAYMENT BEYOND DUE DATE WOULD BE TR EATED AS INCOME IN THE HANDS OF THE EMPLOYER. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER MADE THE DISALLOWANC E OF RS.10,14,838/- BEING DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TO PF IN TERMS OF SEC. 2(24)(X) READ WITH SEC. 36(1)(VA) OF THE ACT. IN APPEAL, CIT(A) HELD THAT ASSESSING OFFI CER WAS NOT JUSTIFIED IN DISALLOWING RS. 10,14,838/- BEING DELAYED PAYMENT OF EMPLOYEES CO NTRIBUTION TO PROVIDENT FUND AS THE SAME 2 ITA 560/K/2012 M/S. AGARWAL MARKETING AND SERVICES A.Y. 08-09 WAS PAID PRIOR TO FILING OF RETURN. WHILE ALLOWING ASSESSEES GROUND OF APPEAL, CIT(A) RELIED ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. M/S. VIJAY SHREE LTD. DATED 06.09.2011, CIT VS. AIMIL LTD. & ORS. 321 ITR 508 (DEL.), CIT VS. SABARI ENTERPRISES 298 ITR 141 (KAR), CIT VS. VINAY CEMENT LTD. 213 CT R 268 AND CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306. HE ACCORDINGLY, DIRECTED A SSESSING OFFICER TO VERIFY THE RECORDS AND TO ALLOW DEDUCTION OF CONTRIBUTION MADE TO THE PF T O THE EXTENT TOWHICH IT HAS BEEN PAID BEFORE DUE DATE OF FILING THE RETURN OF INCOME. BEFORE US, ASSESSEES COUNSEL RELIED ON THE ORDER OF CIT(A) AND CONTENDED THAT THE EMPLOYEES CONTRIBUTI ONS TO P.F. WERE ALLOWABLE AS BUSINESS EXPENDITURE IF PAID BEFORE THE DUE DATE FOR FILING OF RETURN. LD. DR RELIED ON THE ORDER OF ASSESSING OFFICER. WE FIND THAT THE ISSUE IS SQUARE LY COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF HONBLE JURISDICTION AL HIGH COURT IN THE CASE OF CIT VS. M/S. VIJAY SHREE LIMITED VIDE ITAT NO. 245 OF 2011 IN GA NO.2607 OF 2011 DATED 7 TH SEPTEMBER, 2011, WHEREIN IT HAS BEEN HELD AS UNDER: AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARI NG ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COU RT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD., WE FIND THAT TH E SUPREME COURT IN THE AFORESAID CASE HAS HELD THAT THE AMENDMENT TO THE SECOND PROVISO T O THE SEC. 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATI VE IN NATURE AND IS REQUIRED TO BE APPLIED RETROSPECTIVELY WITH EFFECT FROM 1 ST APRIL, 1988. SUCH BEING THE POSITION, THE DELETION OF THE AMOUNT PAID BY THE EMPLOYEES CONTRIBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVOKING THE AFOR ESAID AMENDED PROVISIONS OF SECTION 43(B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMISS THIS APPEAL. WE FIND THAT IN THE INSTANT CASE EMPLOYEES CONTRIB UTIONS TO PF WERE PAID BEFORE DUE DATE OF FILING THE RETURN OF INCOME, WHICH THE CIT(A) HAS W RITTEN IN HIS ORDER AT PARA 3. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. VIJAY SHREE LIMITED (SUPRA), WE ALLOW THE CLAIM OF ASSESSEE IN DELETING THE ADDITION AS MADE BY AO. THIS GROUND OF APPEAL OF RE VENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- ! ! ! ! , '# , (SANJAY ARORA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( /# /# /# /#) )) ) DATED: 7TH AUGUST, 2012 01 %2 3 JD.(SR.P.S.) 3 ITA 560/K/2012 M/S. AGARWAL MARKETING AND SERVICES A.Y. 08-09 '. 4 ,5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ACIT, CIRCLE-30, KOLKATA. 2 ,-*+ / RESPONDENT M/S. AGARWAL MARKETING AND SERVICES, 22A, LANSDOWN PLACE, KOLKATA-29.. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, '.%@/ BY ORDER, /ASSTT. REGISTRAR .