DCIT, Circle - 8, Kolkata, Kolkata V. M/s. Hooghly Met Coke & Power Co. Ltd., Kolkata

ITA 618/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83035 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 21-04-2011
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: N K PODDA R
• Keywords: Business income; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE S RI SHAMIM YAHYA, AM ] ITA NO.618/KOL/2011 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) D.C.I.T., CIRCLE-8, . -VS- M/S. HOOGHLY MET COKE & KOLKATA POWER CO.LTD., KOLKATA (PAN:AABCH 5447 G) FOR THE APPELLANT SHRI VARINDER MEHTA, CIT (.DR) FOR THE RESPONDENT SHRI N.K.PODDAR & AMIT AGARWAL DATE OF HEARING : 14.07.2014 DATE OF PRONOUNCEMENT : 07. 08.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T ORDER OF LD. C.I.T.(A)- VIII, KOLKATA DATED 22.12.2010 AND PERTAINS TO ASSESSMEN T YEAR 2007-08. 2. THE GROUNDS OF APPEAL IN THIS APPEAL READ AS UN DER :- 1. THAT THE LD.CIT(A) HAS ERRED ON FACTS AND CIRCU MSTANCES OF THE CASE AND IN LAW BY HOLDING THAT INTEREST INCOME SHOULD NOT BE TREATED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. 2. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND CIRCU MSTANCES OF THE CASE AND IN LAW BY HOLDING THAT RENTAL INCOME SHOULD NOT BE TREATED AS INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 3. THAT THE LD.CIT(A) HAS ERRED ON FACTS AND CIRCUM STANCES OF THE CASE AND IN LAW BY HOLDING THAT INCOME FROM SALE OF SCRAP SHOULD NOT B E TREATED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES EVEN THOUGH THE ASSESSE E HAD NOT YET COMMENCED PRODUCTION AND THE SAME CANNOT BE CAPITALISED. 4. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND CIRCU MSTANCES OF THE CASE AND IN LAW BY DELETING THE DISALLOWANCES MADE BY THE AO ACCOUNT L ATE DEPOSIT OF EMPLOYEES CONTRIBUTION TO PF EVEN THOUGH THE AO HAD MADE THE DISALLOWANCE BY APPLYING PROVISIONS OF SECTION 36(I)(VA) OF THE ACT. 5. THAT THE IMPUGNED ORDER OF THE CIT(A) IS PERVERS E AND DESERVES TO BE SET ASIDE AND THE ORDER OF THE A.O. TO BE RESTORED. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR ABRO GATE ANY GROUND OF APPEAL AT THE TIME OF HEARING. ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 2 3. IN THIS CASE THE ASSESSEE IS A SUBSIDIARY OF TA TA STEEL LTD. AND WAS FORMED AS A JOINT VENTURE BETWEEN TATA STEEL AND WEST BENGAL IN DUSTRIAL DEVELOPMENT CORPORATION LIMITED. THE COMPANY HAD SET UP COKE OV EN BATTERIES TO MANUFACTURE METALLURGICAL COKE. TILL THE END OF THE RELEVANT YE AR THE COMPANY DID NOT COMMENCE ANY TRADING OR MANUFACTURING OPERATIONS. 4. IN THIS CASE THE AO NOTED THAT THE ASSESSEE HAS EARNED FOLLOWING INCOME IN FINANCIAL YEAR UNDER CONSIDERATION :- (I) INTEREST ON TERM DEPOSIT WITH BANK FOR BANK GUARANTEES ISSUED TO SUPPLIERS AGAINST THE IMPORT OF EQUIPMENTS : RS.3,76,370/- (II) INTEREST ON AMOUNT RECEIVABLE FROM ADVANCE GIVEN TO TATA POWER LTD. : RS.5,62,22,056/- (III) RENTAL INCOME : RS.10,99,170/- (IV) INCOME FROM SALE OF SCRAP : RS.98,46,085/- THE ASSESSEE HAS NOT CONSIDERED ABOVE RECEIPT AS RE VENUE RECEIPT. IT STATED THAT THESE RECEIPTS RELATE TO BUSINESS BUT THESE ARE CAP ITALIZED BECAUSE THE COMMERCIAL PRODUCTION HAS NOT BEEN STARTED. THE ASSESSEE CITED VARIOUS DECISIONS OF HIGH COURTS AND APEX COURT INCLUDING THE DECISION OF THE SUPREM E COURT IN THE CASE OF CIT VS.BOKARO STEEL LTD. (1999) (236 ITR 315). A.O. WAS NOT CONVINCED. HE OBSERVED THAT IT IS A FACT THAT INTEREST INCOME IS INCOME UN DER THE HEAD INCOME FROM OTHER SOURCES. SO, THERE IS NO QUESTION OF IT BEING CAPI TALIZED AS BUSINESS INCOME. THAT RENTAL INCOME COMES UNDER THE HEAD INCOME FROM HOU SE PROPERTY AND FOR THIS REASON THIS INCOME ALSO CANNOT BE CAPITALIZED. THAT SINCE THE ASSESSEE HAS NOT COMMENCED PRODUCTION YET SO THE SALE OF SCRAP WILL COME UNDER THE HEAD INCOME FROM OTHER SOURCES WHICH CANNOT BE CAPITALIZED. IN VIEW OF TH ESE REASONS, AO HELD THAT THE EXPLANATION OF ASSESSEE IS NOT ACCEPTED AND ABOVE S UM TOTALING OF RS,.6,75,43,681/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AO FURTHER NOTED THAT EMPLOYEES CON TRIBUTION TOWARDS PROVIDENT FUND AS PER ANNEXURE-II OF TAX AUDIT REPORT OF RS.14,774/- WAS DEPOSITED AFTER DUE DATE. SO, THIS AMOUNT IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE . ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 3 AGAINST THE ABOVE ORDER THE ASSESSEE WAS IN APPEAL BEFORE THE LD. CIT(A).. 5. AS REGARDS THE TREATMENT OF INTEREST RECEIVED, T HE LD. CIT(A) BY REFERRING TO THE CHARTERED ACCOUNTANTS CERTIFICATE FROM THE ASSESSE E NOTED THAT THE CHARTERED ACCOUNTANT HAS CERTIFIED AFTER EXAMINATION OF THE B OOKS OF ACCOUNT OF THE ASSESSEE THAT THE INTEREST OF RS.3,76,242/- WAS EARNED ON FIXED D EPOSITS FOR ISSUANCE OF BANK GUARANTEES TO THE WEST BENGAL ELECTRICITY BOARD FOR BULK POWER SUPPLY AT ASSESSEES CONSTRUCTION SITE AT HALDIA TO COMMISSIONER OF CUST OMS FOR DIFFERENTIAL AMOUNT OF CUSTOMS DUTY FOR IMPORT OF PLANT & EQUIPMENTS UNDER EPCG SCHEME. IN THIS REGARD THE LD. CIT(A) OBSERVED THAT DURING THE PERIOD OF U NDER CONSIDERATION THE ASSESSEE HAD RECEIVED INTEREST INCOME OF RS.3,76,370/- WHICH IT HAD NOT OFFERED FOR TAX. THE ASSESSEE CLAIMED THAT THE INTEREST WAS EARNED ON TE RM DEPOSITS MADE FOR THE PURPOSE OF SECURING BANK GUARANTEES ISSUED TO SUPPLIERS AGAINS T IMPORT OF EQUIPMENTS. THE ASSESSEE CLAIMED SUCH INTEREST TO BE NOT TAXABLE RE LYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS.KARNAL COOPERAT IVE SUGAR MILLS LTD. (2000) 243 ITR 2. 5.1. THE LD. CIT(A) OBSERVED THAT IN CIT VS. KARNAL COOPERATIVE SUGAR MILLS LTD. (SUPRA) THE FACTS OF THE CASE WERE THAT THE ASSESSE E HAD DEPOSITED MONEY TO OPEN A LETTER OF CREDIT FOR THE PURCHASE OF THE MACHINERY REQUIRED FOR SETTING UP ITS PLANT IN TERMS OF THE ASSESSEES AGREEMENT WITH THE SUPPLIER . IT WAS ON THE MONEY SO DEPOSITED THAT SOME INTEREST HAD BEEN EARNED. THE HONBLE COU RT OBSERVED THAT THAT WAS, THEREFORE, NOT A CASE WHERE ANY SURPLUS SHARE CAPIT AL MONEY WHICH WAS LYING IDLE HAD BEEN DEPOSITED IN THE BANK FOR THE PURPOSE OF EARNI NG INTEREST. THE DEPOSIT OF MONEY IN THAT CASE WAS HELD TO BE DIRECTLY LINKED WITH TH E PURCHASE OF PLANT AND MACHINERY, HENCE, ANY INCOME EARNED ON SUCH DEPOSIT WAS HELD T O BE INCIDENTAL TO THE ACQUISITION OF ASSETS FOR THE SETTING UP OF THE PLANT AND MACHI NERY. IN THAT VIEW THE HONBLE COURT HELD THAT IN THAT MATTER THE RATIO LAID DOWN IN TUT ICORIN ALKALI CHEMICALS AND FERTILISERS LIMITED VS. CIT [1997] 227 ITR 172, WIL L NOT BE ATTRACTED AND THE MORE APPROPRIATE DECISION IN THE FACTUAL SITUATION IN TH AT CASE WAS IN CIT V. BOKARO STEEL LTD. [1999] 236 ITR 315 (SC). THE HONBLE COURT DIS MISSING THE APPEAL OF THE ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 4 REVENUE HELD THAT THE INTEREST EARNED IN THAT CASE WAS NOT TO BE TAXED AS INCOME OF THE ASSESSEE. 6. REFERRING TO THE ABOVE LD. CIT(A) OBSERVED THAT IN THE INSTANT CASE ALSO THE INTEREST HAD BEEN RECEIVED BY THE ASSESSEE ON TERM DEPOSITS MADE FOR THE PURPOSE OF SECURING BANK GUARANTEES ISSUED TO SUPPLIERS AGAINS T IMPORT OF EQUIPMENTS. THEREFORE, IN THE LIGHT OF DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF CIT V. KARNAL COOPERATIVE SUGAR MILLS LTD. (2000) 243 ITR 2 THE I NTEREST RECEIVED BY THE ASSESSEE ON TERM DEPOSITS MADE FOR THE PURPOSE OF SECURING B ANK GUARANTEES ISSUED TO SUPPLIERS AGAINST IMPORT OF EQUIPMENTS IS HELD TO BE NOT TAXA BLE. THEREFORE LD. CIT(A) HELD THAT THE ASSESSMENT OF RS.3,76,370 REPRESENTING INTEREST ON TERM DEPOSITS WITH BANKS AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES I S, THUS, DELETED. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BE FORE US. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT THERE IS NO QUARREL WITH REGARD TO THE PROPOSITION THAT IF INTEREST WAS RECEIVED BY THE ASSESSEE IN PRE-CONSTRUCTION PERIOD ON TERM DEPOSIT MADE FOR THE PURPOSE OF SECURING BANK GUARANTEES ISSUED TO SUPPLIERS AGAINST IMPORT OF EQUIPMENTS THE SAME WOULD NOT BE TAXABLE FROM INCOME FROM OTHER SOURCES. THIS PRO POSITION IS WELL SETTLED BY THE HONBLE APEX COURTS DECISION CITED IN THE ABOVE OR DER OF THE LD. CIT(A). HOWEVER, WE NOTE THAT THE LD. CIT(A) HAS ACCEPTED THE CERTIF ICATE FROM THE CHARTERED ACCOUNTANT THAT THE AMOUNT OF INTEREST WAS EARNED ON FIXED DEP OSITS MADE FOR THE PURPOSE OF SECURING BANK GUARANTEES ISSUED TO THE SUPPLIERS AG AINST IMPORT OF EQUIPMENTS. THIS FACT HAS NOT BEEN EXAMINED BY THE REVENUE. THE LD. CIT(A) HAS NOTED THAT THE AO HAS NOT MADE ANY COMMENTS WHEN THE ASSESSEES SUBMISSI ONS WERE FORWARDED TO HIM. IT IS ALSO NOT THE CASE THAT THE LD. CIT(A) HAS HIMSEL F EXAMINED THE VERACITY OF THE ASSESSEES SUBMISSIONS IN THIS REGARD. UNDER THESE CIRCUMSTANCES WE REMIT THIS ISSUE TO THE FILE OF AO. THE AO SHALL EXAMINE THE VERACITY O F THE ASSESSEES SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND DECIDE AS PER THE RATIO E MANATING FROM THE DECISION OF HONBLE APEX COURT CITED ABOVE. ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 5 8. SIMILARLY AS REGARDS ASSESSMENT OF RS.5,62,22,05 6/- REPRESENTING INTEREST FROM TATA POWER COMPANY LTD. THE LD. CIT(A) HAS REFERRED TO THE CERTIFICATE FROM THE CHARTERED ACCOUNTANT IN THIS REGARD. THE LD. CIT(A) HAS NOTED THAT FROM THE CERTIFICATE ISSUED BY THE CHARTERED ACCOUNTANT IT WAS OBSERVED THAT A SUM OF RS.5,62,22,056/- WAS THE TOTAL INTEREST PAID BY THE ASSESSEE ON TERM LOAN REGARDING THE CAPITAL EXPENDITURE MADE BY THE ASSESSEE ON ACCOUNT OF POWE R PLANT AND IT WAS THIS INTEREST ONLY THE ASSESSEE HAS RECOVERED FROM TATA POWER COM PANY LTD. ON HANDING OVER OF THE OWNERSHIP OF TWO UNITS OF POWER PLANT TO THAT C OMPANY. IN THIS VIEW OF THE MATTER THE LD. CIT(A) OBSERVED THAT THE SAID INTEREST WAS ONLY RECOVERED AND ACTUAL EXPENDITURE WAS INCURRED BY THE ASSESSEE TOWARDS SE TTING UP OF THE PLANT. HENCE HE OBSERVED THAT THIS DID NOT INVOLVE ANY ELEMENT OF I NCOME AND THE SAME WAS NOT LIABLE TO BE TAXED AS INCOME. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFORE US. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RECORDS. WE FIND THAT AS ALSO HELD BY US WHILE DECIDING THE ISS UE OF INTEREST RECEIVED EARLIER THE ONLY DISPUTE IS THAT IF A SUM INVOLVED WAS ONLY REC OVERY OF ACTUAL EXPENDITURE INCURRED BY THE ASSESSEE TOWARDS SETTING UP OF THE POWER PLA NT THE SAME WOULD NOT BE TAXABLE AS INCOME. HOWEVER, THE FACTS IN THIS REGARD ARE ALSO BASED UPON ONLY THE CERTIFICATE ISSUED BY THE CHARTERED ACCOUNTS THE VERACITY OF WH ICH HAS NOT BEEN EXAMINED BY THE REVENUE. IN THESE CIRCUMSTANCES ON THE SAME REASONI NG AS IN THE PREVIOUS ISSUE WE REMIT THIS ISSUE ALSO TO THE FILE OF THE AO. 10. AS REGARDS THE TREATMENT OF RENTAL INCOME THE L D. CIT(A) NOTED THAT THE ASSESSEE HAS RECEIVED RENT OF RS.10,99,170/- WHICH WAS NOT O FFERED FOR TAXATION. THE LD. CIT(A) IN THIS REGARD REFERRED TO THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF CIT VS BOKARO STEEL LTD. 236 ITR 315 (SC); CIT V. KARNATAK A POWER CORPORATION (2001) 247 ITR 268 (SC) AND BONGAIGAON REFINERY AND PETROCHEMI CALS LTD. VS. CIT (2001) 251 ITR 329 (SC). BY REFERRING TO THESE DECISIONS THE L D. CIT(A) HAS HELD THAT THE RENT RECEIVED BY THE ASSESSEE FROM EMPLOYEES AND CONTRAC TORS BEFORE THE COMMENCEMENT ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 6 OF ITS COMMERCIAL PRODUCTION IS NOT TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY FOR THE YEAR UNDER CONSIDERATION. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BE FORE US. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE RECORDS. WE FIND THAT THE PROPOSITION IS WELL SETTLED THAT IF T HE MONEY IS BORROWED BY A NEWLY STARTED COMPANY WHICH IS IN THE PROCESS OF CONSTRUC TION AND ERECTING ITS PLANT THE INTEREST INCURRED BEFORE THE COMMENCEMENT OF PRODUC TION ON SUCH BORROWED MONEY SHOULD BE CAPITALIZED AND ADDED TO THE CASE OF FIXE D ASSETS RELATE TO AS SUCH EXPENDITURE. BY THE SAME REASONING IF THE ASSESSEE RECEIVES ANY AMOUNT WHICH ARE LINKED WITH THE SETTING UP OF ITS PLANT AND MACHINE RY SUCH RECEIPT WILL ALSO GO TO REDUCE THE COST OF ITS ASSETS. NOW IN THE PRESENT C ASE WE FIND THAT THE NATURE OF RENT RECEIPT HAS NOT BEEN DISCUSSED IN THE AOS ORDER NO R THERE IS ANY DETAIL REFERENCE IN THE ORDER OF THE LD. CIT(A). THE HONBLE APEX COURT IN THE CASE OF BOKARO STEEL LTD. HAS CONSIDERED THE ISSUE WHERE IN THE PRE-CONSTRUCTION PERIOD THE ASSESSEE PERMITTED THE CONTRACTORS TO USE THE PREMISES OF THE ASSESSEE FOR HOUSING ITS STAFF AND WORKERS AND RENT RECEIPT THERE FROM WAS TREATED AS CAPITAL RECE IPT. IN THIS CASE IN ABSENCE OF THE DETAIL REGARDING THE NATURE OF RENT RECEIPT WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE ALSO TO THE FILE OF THE AO. THE AO SHALL EXAMINE TH E DETAIL NATURE OF THE RENT RECEIPT AND DECIDE AS PER LAW EMANATING FROM THE DECISION O F THE HONBLE APEX COURT AS CITED ABOVE. 12. AS REGARDS TREATMENT OF A SUM OF RS.98,46,085/- IN RESPECT OF SALE VALUE OF SCRAP THE LD. CIT(A) REFERRED TO THE CERTIFICATE IS SUED BY THE CHARTERED ACCOUNTANT REGARDING THE SALE OF SCRAP AND TOTAL PURCHASE AND SALE THEREOF. THE LD. CIT(A) HAS HELD AS UNDER :- IT IS NOT DISPUTED THAT DURING THE PERIOD UNDER CO NSIDERATION THE ASSESSEE COMPANY HAD NOT COMMENCED ITS BUSINESS ACTIVITY AND WAS ONLY IN THE STAGE OF BUSINESS ESTABLISHMENT. THE ASSESSEE HAS EXPLAINED THAT THE SCRAP, WHICH WA S SOLD BY IT, WAS GENERATED ONLY OUT OF THE STEEL PURCHASED FOR AND USED IN THE PROCESS OF CONSTRUCTION OF ITS FACTORY AND THE PLANT AND THAT BOTH THE STEEL PURCHASED AND THE SCR AP SOLD WAS LINKED DIRECTLY TO THE CONSTRUCTION. SINCE THE SCRAP, IN THE INSTANT CASE, WAS GENERATED FROM THE MATERIAL USED FOR THE CONSTRUCTION OF ASSESSEES FACTORY AND PLANT, T HE SAME WAS DIRECTLY LINKED WITH THE ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 7 SETTING UP OF PLANT AND MACHINERY, THEREFORE, THE S ALE THEREOF WOULD GO TO REDUCE THE CAPITAL COST OF SETTING UP OF THE PLANT AND MACHINE RY. IN THE LIGHT OF THE PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT IN CIT V. BOKARO STEEL LTD. (SUPRA) AND ON THE FACTS OF THE CASE IT IS HELD THAT THE INCOME FROM S ALE OF SCRAP IN THIS CASE IS TO BE CAPITALIZED AND NOT TO BE ASSESSED AS INCOME FROM OTHER SOURCES. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BE FORE US. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE RECORDS. WE AGAIN FIND IN THIS CASE THAT THE LD. CIT(A) HAS REL IED UPON THE CERTIFICATE OF THE CHARTERED ACCOUNTANT WITH REGARD TO ESTABLISHING TH E NATURE OF THE SALE OF SCRAP. THE ACTUAL NATURE WAS NOT EXAMINED BY THE REVENUE. THER E IS NO MENTION OF THIS ISSUE IN THE AOS ORDER AND THE LD. CIT(A) HAS HIMSELF NOTED THAT THE ASSESSEES COUNSEL RELIED UPON THE CERTIFICATE OF THE CHARTERED ACCOUNTANT. I N THESE CIRCUMSTANCES WE DEEMED IT APPROPRIATE TO REMIT THIS ISSUE ALSO TO THE FILE OF AO. THE AO SHALL EXAMINE THE VERACITY OF THE SUBMISSIONS OF THE ASSESSEE BEFORE THE LD. CIT(A) AND DECIDE AS PER THE RATIO EMANATING FROM THE DECISION OF THE HONBLE AP EX COURT IN THE CASE OF BOKARO STEEL LTD. (SUPRA). 14. THUS IN RESPECT OF ALL THE ISSUES DISCUSSED HER EIN ABOVE, WE NOTE THAT THE LD. CIT(A) HAS ADJUDICATED THESE ISSUES BY RELYING UPON THE CHARTERED ACCOUNTANTS CERTIFICATE SUBMITTED BY THE ASSESSEE. WITH REGARD TO THE NATURE OF THE EXPENDITURE/RECEIPT THERE IS NO EXAMINATION OF THE NATURE THEREOF BY THE REVENUE. UNDER THESE CIRCUMSTANCES WE HAVE CONSIDER IT APPRO PRIATE TO REMIT THESE ISSUES TO THE FILE OF AO. IN THIS REGARD FOR ARRIVING AT THE ABOV E DECISION WE PLACE RELIANCE ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF K APOOR CHAND SHRIMAL 131 ITR 451. IN THIS CASE IT WAS HELD THAT IT IS THE DUTY O F THE APPELLATE AUTHORITY TO CORRECT THE LACUNAE IN THE ORDERS OF THE AUTHORITIES BELOW AND IT IS REQUIRED TO REMIT THE ISSUE TO THEM. 15. AS REGARDS THE DISALLOWANCE ON ACCOUNT OF LATE DEPOSIT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND, WE NOTE THAT THE AD DITION HAS BEEN MADE BY THE AO BY NOTING THAT A SUM OF RS.14,774/- WAS DEPOSITED AFTE R THE DUE DATE. IN THIS REGARD THE LD.CIT(A) HAS RELIED UPON THE DECISION OF THE HONB LE APEX COURT IN THE CASE OF CIT ITA.NO.618/KOL/2011 M/S.HOOGHLY MET COKE & POWER CO. LTD., A.YR.2007-08 8 VS. ALOM EXTRUSION LTD. 319 ITR 306 WHEREIN THE HON BLE APEX COURT HAS HELD THAT IF THE AMOUNT OF EMPLOYEES CONTRIBUTION TOWARDS PF IS DEPOSITED BEFORE THE DATE OF FILING RETURN OF INCOME U/S 139(1) OF THE ACT NO DI SALLOWANCE CAN BE MADE THEREOF EVEN IF THERE IS DELAYED DEPOSIT OF THE SAME. WE NO TE THAT THE ABOVE DECISION OF THE HONBLE APEX COURT HAS TO BE APPLIED. HOWEVER, SINC E THE DATE OF DEPOSIT OF THE PF ARE NOT AVAILABLE WE REMIT THIS ISSUE ALSO TO THE F ILE OF AO. THE AO SHALL EXAMINE THE DATE OF PAYMENTS AND DECIDE AS PER LAW EMANATING FR OM THE APEX COURTS DECISION. 16. IN THE RESULT THE APPEAL FILED BY THE REVENUE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07.08.2014. SD/- SD/- [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 07.08.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M./S.HOOGHLY MET COKE & POWER CO.LTD., 43, J.L.NEHR U ROAD, KOLKATA-700071. 2 D.C.I.T., CIRCLE-8, KOLKATA 3 . CIT(A)-VIII, KOLKATA 4. CIT - KOLKATA. 5. CIT-DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES