The Sonepat Coop. Sugar Mills Ltd., Sonepat V. DCIT, Sonepat

ITA 5936/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86517 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 06-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKAR
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : H : NEW DELHI BEFORE SHRI R.S. SYAL, AM AND SHRI A.T. VARKEY, JM ITA NO.5936/DEL/2010 ASSESSMENT YEAR : 2007-08 THE SONEPAT COOP. SUGAR MILLS LTD., SONEPAT. PAN: AAAAT0959N VS. D CIT, SONEPAT CIRCLE, SONEPAT. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : NONE DEPARTMENT BY : S HRI J.P. CHANDRAKAR, SR.DR ORDER PER R.S. SYAL, AM: THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE CIT(A) ON 19.10.10 IN RELATION TO THE ASSESS MENT YEAR 2007-08. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AGAIN ST THE CONFIRMATION OF ADDITION OF `1,83,034/- ON ACCOUNT OF LOCAL AREA DEVELOPMENT TAX NOT PAID BEFORE THE DUE DATE OF FIL ING THE RETURN OF INCOME. ITA NO.5936/DEL/2010 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE, A COOPERATIVE SUGAR MILL, CLAIMED DEDUCTION FOR LOCAL AREA DEVELOPMENT TAX OF `1,83,034/- AND EQUAL AMOUNT WAS SHOWN AS PAYABLE IN ITS BALANCE SHEET. SINCE THE SAID AMOUN T WAS NOT PAID BEFORE THE DUE DATE OF FILING THE RETURN, THE AO, I MPLIEDLY INVOKING THE PROVISIONS OF SECTION 43B OF THE INCOME-TAX ACT , 1961 (HEREINAFTER ALSO CALLED THE ACT), MADE DISALLOWA NCE FOR THE SAID SUM. THE LD. CIT(A) UPHELD THE DISALLOWANCE AND AL SO DIRECTED THE AO TO ALLOW DEDUCTION FOR A SUM OF `93,338/-, BEIN G THE AMOUNT PAID ON 18.8.2006 ALLOWED AS PER THE ORDER OF THE C IT(A) FOR THE AY 2006-07. THE ASSESSEE IS AGGRIEVED THIS DISALLOW ANCE. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. NONE APPEARED FROM THE SIDE OF THE ASSE SSEE DESPITE NOTICE DURING THE COURSE OF HEARING. HOWEVER, SOME ONE CAME IMMEDIATELY AFTER THE CONCLUSION OF HEARING TO SUBM IT THAT THE VERY PAYMENT OF THE LOCAL AREA DEVELOPMENT TAX IS U NDER CHALLENGE BEFORE THE HONBLE SUPREME COURT AND THE MATTER IS STILL SUB JUDICE . ITA NO.5936/DEL/2010 3 5. IN VIEW OF THE FACT THAT THE AMOUNT WAS PAYABLE AS AT THE END OF THE YEAR IN ITS BALANCE SHEET IMPLIES THAT T HE ASSESSEE CLAIMED DEDUCTION FOR THIS SUM IN ITS PROFIT & LOSS ACCOUNT. AS PER THE MANDATE OF SECTION 43B, DEDUCTION CAN BE ALLOWE D FOR SUCH SUM ONLY SUBJECT TO THE PAYMENT LATEST BY THE DUE D ATE FOR FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT. SINCE THE AMOUNT WAS NOT PAID BY THE ASSESSEE BEFORE THE DUE DATE OF FIL ING THE RETURN, IN OUR CONSIDERED OPINION, THE AUTHORITIES BELOW WE RE JUSTIFIED IN MAKING AND SUSTAINING ITS DISALLOWANCE U/S 43B. I N SO FAR AS THE CONTENTION ABOUT THE AMOUNT POSSIBLY NOT BECOMING P AYABLE BY VIRTUE OF THE LIKELY JUDGMENT OF THE HONBLE SUPREM E COURT, WE FIND THAT IF THE AMOUNT TURNS OUT TO BE NOT PAYABLE , THEN, THERE CAN BE NO QUESTION OF DEDUCTION ALSO. THE DISALLOWA NCE U/S 43B PROCEEDS ON THE PREMISE THAT THE ASSESSEE INITIALLY CLAIMS DEDUCTION WHICH IS NOT ALLOWABLE BECAUSE OF THE NON -PAYMENT OF TAX, DUTY OR FEES ETC., BEFORE THE DUE DATE. WHATE VER MAY BE THE CIRCUMSTANCE, THE AMOUNT DISALLOWED BY THE AO WOULD REQUIRE ADDITION IN RESPECT OF THE CLAIM FOR DEDUCTION MADE BY THE ASSESSEE IN RESPECT OF THE SAID SUM FOR THE YEAR IN QUESTION. WE, ITA NO.5936/DEL/2010 4 THEREFORE, DO NOT PROPOSE TO INTERFERE WITH THE IMP UGNED ORDER ON THIS SCORE. 6. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.01.201 5. SD/- SD/- [ A.T. VARKEY ] [ R.S. SYAL ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, JANUARY, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.