M/s Orissa Spong Iron & steel Ltd, Bhubaneswar V. ACIT, Bhubaneswar

ITA 64/CTK/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4278 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 26-02-2010
• Court: TRIBUNAL
• Department Lawyers: ABHAYA NAYAK
• Assessee Lawyers: M UDAYAPURIYA; BINOD AGARWALARS
• Keywords: Question of law
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.TA.NO . 64/CTK/2010 / ASSESSMENT YEAR 2006 - 07 M/S.ORISSA SPONGE IRON& STEEL LTD., OSIL HOUSE, GANGADHAR MEHER MARG, BHUBANESWAR 751 024 AAACO 2568 G - - - VERSUS - . ACIT, CIRCLE 1(1), BHUBANESWAR. / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI M.UDAYAPURIYA AND BINOD AGARWAL,ARS FOR THE RESPONDENT : SHRI ABHAYA NAYAK, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . ASSESSEE IS IN APPEAL AGITATING THE ACTION OF THE LEARNED CIT(A) CONFIRMING THE DISALLOWANCE OF RS.62,70,118 BEING EMPLOYEES CONTRIBUTION OF PROVIDENT FUND HOLDING THE SAME WAS NOT PAID WITHIN TIME ALLOWED IN TH E RESPECTIVE STATUS AS PER SECTION2(24)(X) READ WITH SECTION 36(1)(VA) OF THE INCOME - TAX ACT,1961 IGNORING SECTION 43B AS PER WHICH IT COULD BE PAID BEFORE DUE DATE OF FILING OF THE INCOME - TAX RETURN. 2. THE LEARNED COUNSEL SUBMITTED THAT THE ISSUE WAS RE NDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR S 2002 - 03 , 2003 - 04 AND 2004 - 05 WHERE ON THE BASIS OF MATERIAL CONSIDER ED THE TRIBUNAL WAS PLEASED TO RESTORE THE ASSESSEES CONTENTION TO THE ASSESSING OFFICER WHICH HAS BEEN APPEALED AGAI NST BEFORE THE HONBLE HIGH COURT U/S.260A . HE POINTED OUT THAT IN THE LIGHT OF DECISION OF HONBLE / I.TA.NO .64/CTK/2010 2 APEX COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD (227 CTR 417) RENDERED ON 25.11.2009 THE ISSUE NOW REMAINS WELL SETTLED THAT BIFURCATION OF EMPLOYERS AND EMPLOYEES CONTRIBUTION NEEDS NO FURTHER DISTINCTION. HE PRAYED THAT THE ORDER OF THE LEARNED CIT(A) BE CONSIDERED IN THE LIGHT OF THE SUPREME COURTS DECISION WHICH IN ANY CASE IS BEFORE THE HONBLE HIGH COURT OF ORISSA IN ASSESSEES APPEAL IN THE EARL IER YEAR. 3. THE LEARNED DR POINTED OUT THAT IN VIEW OF THE ASSESSEES APPEAL ON SIMILAR ISSUE FOR THE ASSESSMENT YEAR 2002 - 03 AND LATER WAS RESTORED TO THE ASSESSING OFFICER AND IT HAS BEEN PROTESTED BY THE ASSESSEE BEFORE THE HONBLE ORISSA HIGH COURT AN D IN VIEW OF THE HONBLE SUPREME COURT HAVING RENDERED DECISION THEREAFTER, THE ISSUE MAY BE CONSIDERED BY THE LEARNED ASSESSING OFFICER. 4. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND ARE INCLINED TO HOLD THAT IT IS MANDATORY TO CONSIDER THE CASE OF THE ASSESSEE APPELLANT ON THE BASIS OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD (227 CTR 417) IN SO FAR AS THE REVENUE BEFORE THE APEX COURT HAD NOT PRESSED GROUNDS NO.1 AND 2 WHICH REMAINED TO BE ADJUDICATED BY HONBLE APEX COURT LEAVINGIT OPEN FOR CONSIDER ATION HERE AGAIN WHICH THE LEARNED COUNSEL HIMSELF HAS SUBMITTED IS DISPUTED BEFORE THE HONBLE ORISSA HIGH COURT. THEREFORE, WE FIND FORCE IN THE CONTENTION OF THE LEARNED DR APPROPRIATE TO THE EXTENT THAT THE TRIBUNAL IN ASSESSES OWN CASE ON IDENTICAL ISSUE HAD RESTORED THE ISSUE TO THE ASSESSING OFFICER AGAINST WHICH APPEAL HAS NOT BEEN SETTLED BY THE HONBLE ORISSA HIGH COURT. 5. IN THE LIGHT OF THE ABOVE AND THE SPECIAL PROVISION FOR AVOIDING REPETITI VE APPEALS UNDER CHAPTER XIVA, WE HOLD THAT THE CLAIM OF THE ASSESSEE ON IDENTICAL QUESTION OF LAW IS PENDING BEFORE THE HIGH COURT MAY BE PERUSED. THE APPEAL FILED BY / I.TA.NO .64/CTK/2010 3 THE ASSESSEE BEFORE AS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FO R THE AY 2002 - 03 ,2003 - 04 AND 2004 - 05 IS RESTORED TO THE ASSESSING OFFICER FOR CONSIDERATION AS ABOVE SAID . 6. IN THE RESULT, THE APPEAL IS CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OP EN COURT ON DT. 30.07.2010 SD/ - SD/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 30.07.2010 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : M/S.ORISSA SPONGE IRON& STEEL LTD., OSIL HOUSE, GANGADHAR MEHER MARG, BHUBANESWAR 751 024 / THE RESP ONDENT : ACIT, CIRCLE 1(1), BHUBANESWAR. THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY ( /) H.K.PADHEE SE NIOR.PRIVATE SECRETARY. / I.TA.NO .64/CTK/2010 4