Jaihind Projects Limited, Ahmedabad V. The ACIT., Ward-2(2), Ahmedabad

ITA 586/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5674 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 07-07-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 14-02-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Keywords: Depreciation
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND A. N. PAHUJA, AM) ITA NO.586/AHD/2008 A. Y.: 2003-04 JAIHIND PROJECTS LTD., 5 TH FLOOR, SHANTI ARCADE, NR. SAPTAK PARTY PLOT, 132, RING ROAD, NARANPURA AHMEDABAD VS THE A. C. I. T. , W-2(2), AHMEDABAD PA NO. AAACJ 9366 R (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI K. M. MAHESH, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) III, AHMEDABAD DATE D 18-09-2007 FOR ASSESSMENT YEAR 2003-04. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SER VICE OF NOTICE. THE A/D CARD DULY SERVED UPON THE ASSESSEE IS AVAIL ABLE ON RECORD. THE APPEAL IS, THEREFORE, HEARD IN THE ABSENCE OF THE A SSESSEE. 3. WE HAVE HEARD THE LEARNED DR AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. 4. ON GROUND NO.1 OF THE APPEAL, THE ORDER OF THE L EARNED CIT(A) IS CHALLENGED IN NOT ALLOWING THE PAYMENT OF RS.5,03,6 28/- TOWARDS P. F. AND RS.1,544/- TOWARDS ESI DESPITE IT WAS ACCEPTED THAT THE ASSESSEE HAS MADE PAYMENTS WITHIN THE YEAR BEFORE FILING OF THE RELEVANT RETURN OF ITA NO.586/AHD/2008 JAIHIND PROJECTS LTD., AHMEDABAD VS ACIT, W-2(2), A HMEDABAD 2 INCOME. THE ASSESSEE CHALLENGED THESE ADDITIONS BEF ORE THE LEARNED CIT(A) ON ACCOUNT OF DISALLOWANCE OF DELAYED PAYME NT OF EMPLOYEES CONTRIBUTION OF PF AND ESI. THE ASSESSEE IS A CONTR ACTOR LAYING PIPE LINES AND ENGAGED IN OTHER CIVIL WORKS, HAD DEPOSITED THE EMPLOYEES CONTRIBUTION MADE TO THE EXTENT OF RS.5,03,628/-(PF ) AND RS.1,544/- (ESI) IN ASSESSMENT YEAR 2003-03 UNDER APPEAL. THE AO NOTED THAT THE DEPOSITS WERE MADE AFTER THE GRACE PERIOD OF 5 DAYS UNDER THE PF AND ESI ACTS, THEREFORE, CONTRAVENED THE PROVISIONS OF SECT ION 36(1) (VA) OF THE IT ACT AND ACCORDINGLY DISALLOWANCE WAS MADE. THE LEAR NED CIT(A) CONFIRMED THE ORDER OF THE AO AND DISMISSED THE AP PEAL OF THE ASSESSEE. 5. THE LEARNED DR CONCEDED THAT THE ISSUE IS COVERE D IN FAVOUR OF THE ASSESSEE BY THE RECENT DECISION OF THE HONBLE DELH I HIGH COURT IN THE CASE OF CIT VS P. M. ELECTRONICS LTD. 313 ITR 161 I N WHICH IT WAS HELD AS UNDER: THE ASSESSING OFFICER DISALLOWED THE CONTRIBUTIONS MADE BY THE ASSESSEE TOWARDS PROVIDEN T FUND UNDER SECTION 43B OF THE INCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 1998-99, ON THE GROUND THAT THE PAYMENTS WERE MADE BY THE ASSESSEE AFTER THE DUE DA TE UNDER SECTION 36(1) (VA) OF THE ACT AND ACCORDINGLY MADE ADDITIONS. THE COMMISSIONER (APPEALS) CONFIRMED THE ADDITION OF RS.13,10,791 AGAINST RS.17,94,042 MADE BY THE ASSESSING OFFICER ON THE GROUND THAT CERTAIN PAYMENTS WERE MADE WITHIN THE PRESCRIBED TIME. THE TRIBUNAL ALLOWED THE ASSESSEES APPEAL. ON APPEAL: HELD, DISMISSING THE APPEAL, THAT THE VIEW TAKEN BY THE TRIBUNAL DESERVED TO BE SUSTAINED AS IT WAS NO LONGER RES INTEGRA IN VIEW OF THE DECISION OF THE SUPREME COURT. THE ASSESSEE WAS ENTITLED TO CLAIM T HE BENEFIT UNDER SECTION 43B FOR THE PERIOD PARTICULAR LY IN VIEW OF THE FACT THAT IT HAD CONTRIBUTED TO PROVIDE NT FUND BEFORE FILING THE RETURN. 6. THE HONBLE DELHI HIGH COURT BY FOLLOWING THE DE CISION IN THE CASE OF VINAY CEMENT LTD. DELIVERED BY THE HONBLE SUPRE ME COURT REPORTED IN 213 CTR 268 DISMISSED THE APPEAL. THE ADMITTED FAC T IS THAT THE ITA NO.586/AHD/2008 JAIHIND PROJECTS LTD., AHMEDABAD VS ACIT, W-2(2), A HMEDABAD 3 PAYMENTS IN QUESTION HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN. THEREFORE, THE LEARNED DR IS JUSTIFIED IN C ONTENDING THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. SIMILAR VIEW IS TAKEN BY THE ITAT AHMEDABAD BENCH IN THE CASE OF B. RAWAT VS ITO IN I TA NO.1908/AHD/2009 DATED 18-09-2009. RESPECTFULLY FOL LOWING THE RATIO LAID DOWN ABOVE AND THAT THE LEARNED DR CONCEDED TH AT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.5,0 3,628/- AND RS.1,544/-. AS A RESULT, THIS GROUND OF APPEAL OF T HE ASSESSEE IS ALLOWED. 7. ON GROUND NO.2, THE ASSESSEE CHALLENGED THE ORDE R OF THE LEARNED CIT(A) IN NOT ALLOWING DEPRECIATION ON JEEP OF RS.8 8,137/-. THE AO MADE THE AFORESAID ADDITION ON ACCOUNT OF EXCESS DEPRECI ATION IN THE ASSESSMENT YEAR UNDER APPEAL. HOWEVER, THIS GROUND WAS NOT RAISED BEFORE THE LEARNED CIT(A). THEREFORE, THE LEARNED C IT(A) DID NOT DISCUSS THIS GROUND IN THE IMPUGNED ORDER. THIS FACT IS ALS O CONFIRMED BY THE GROUNDS OF APPEAL RAISED BEFORE THE LEARNED CIT(A) IN WHICH THE ASSESSEE HAS NOT RAISED THIS GROUND BEFORE THE LEARNED CIT(A ) IN ASSESSMENT YEAR 2003-04. SINCE THIS GROUND IS NOT ARISING OUT OF TH E ORDER OF THE LEARNED CIT(A) AND WAS ALSO NOT RAISED BEFORE THE LEARNED C IT(A), THEREFORE, THERE IS NO MERIT IN THIS GROUND OF APPEAL OF THE ASSESSE E. THE SAME IS ACCORDINGLY DISMISSED. IT MAY ALSO BE CLARIFIED HER E THAT SIMILAR GROUND WAS RAISED OF DIFFERENT AMOUNT BEFORE THE LEARNED C IT(A) FOR ASSESSMENT YEAR 2004-05 WHICH IS DECIDED BY THE LEARNED CIT(A) IN PARA 6.7 OF THE IMPUGNED ORDER AND UPHELD THE ORDER OF THE AO. SINC E THE IMPUGNED ORDER WAS PASSED FOR TWO ASSESSMENT YEARS I.E. ASSE SSMENT YEAR 2003-04 AND 2004-05, THEREFORE, SUCH A GROUND IS NOT ARISIN G IN ASSESSMENT YEAR 2003-04. CONSIDERING THE ABOVE DISCUSSIONS, THIS GR OUND OF APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO.586/AHD/2008 JAIHIND PROJECTS LTD., AHMEDABAD VS ACIT, W-2(2), A HMEDABAD 4 8. AS A RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9-07-2010. SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 9-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD