DCIT, CC-XVI, Kolkata, Kolkata V. Polar Pharma India Ltd., Kolkata

ITA 644/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54646 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 28-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D J MEHTA
• Assessee Lawyers: M TIWARI
• Keywords: Question of law
• Section: 43B; 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND , . ! . '# ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] $ $ $ $ / I.T.A NO. 644/KOL/2011 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR: 2002-03 DEPUTY COMMISSIONER OF INCOME-TAX, VS POLAR PHARMA INDIA LTD. C.C. XVI, KOLKATA (PAN:AABCP 5071 A) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) DATE OF HEARING: 14/11/2011 DATE OF PRONOUNCEMENT: 14/11/2011 FOR THE APPELLANT: SHRI D. J. MEHTA FOR THE RESPONDENT: SHRI M. TIWARI '. / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), CENTRAL-II, KOLKATA IN APPEAL NO.19/CC-XVI/CIT(A)C-II/09-10 DATED 11.01.2011. ASS ESSMENT WAS FRAMED BY DCIT, CC- XVI, KOLKATA U/S. U/S. 143(3)/154 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2002-03 VIDE HIS ORDER DA TED 23.03.2009. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN DELETING THE DISALLOWANCE OF P.F. CONTRIBUTION OF EMPLOYEES AND EMPLOYERS BY HOLDING THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF AO PAS SED U/S. 143(3) OF THE ACT. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NOS. 1 AND 2: (1) (A). THAT ON THE FACT AND CIRCUMSTANCES OF T HE CASES AND IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE IN RES PECT OF DISALLOWANCE OF RS.40,81,678/- MADE ON ACCOUNT OF DELAYED PAYMENT OF BOTH EMPLOYEE S AND EMPLOYERS CONTRIBUTION TO PROVIDENT FUND BY HOLDING THAT THE ISSUE WAS DEBATA BLE ONE AND THERE WAS NO MISTAKE APPARENT FROM RECORD WITHOUT CONSIDERING THE EXPRES S PROVISIONS OF SECTION 36(1)(VA) AND SECTION 43B OF THE ACT, AS PER WHICH NO DEBATE WAS INVOLVED. (B) IN DOING SO, THE LD. CIT(A) HAS ERRED IN NOT AP PRECIATING THAT THE APPARENT MISTAKES ON THE RECORD (AUDIT REPORT) AND ALSO FAILED TO CON SIDER THE SETTLED DECISION OF HONBLE SPECIAL BENCH OF ITAT IN THE CASE OF J.C.I.T., VS I .T.C. LTD. IN 112 ITD 57, THE DECISION OF 2 ITA 644/K/2011 POLAR PHARMA INDIA LTD. . A.Y.02-03 ITAT KOLKATA IN DCIT VS. ASHIKA STOCK BROCKING LTD IN ITA NO 1255/KOL/2010 DATED 19.11.2010 AND THE DECISION IN THE CASE OF CIT VS. SYNERGY FINANCIAL EXCHANGE LTD. 288 ITR 366 (MADRASS HIGH COURT) IN RESPECT OF DISALLOW ANCE OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TO THE PROVIDENT FUND. (2) THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE EMPLOYERS CONTRIBUTION TO PF PAID BEF ORE DUE DATE OF FILING OF RETURN WHILE HOLDING EARLIER THAT DISALLOWANCE ON BOTH EMPLOYEES AND EMPLOYERS CONTRIBUTION WAS DEBATABLE IN NATURE AND HENCE, THE ORDER IS SELF CO NTRADICTORY. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. IT IS AN ADMITTED FACT, BY THE LOWER AUTHORITIES I. E. CIT(A) AS WELL AS AO DURING THE PROCEEDINGS OF 154 AS WELL AS 143(3) OF THE ACT, THAT THE PF CO NTRIBUTION PAYMENTS ON ACCOUNT OF EMPLOYEES CONTRIBUTION AND EMPLOYERS CONTRIBUTION ARE DEPOSITED IN THE GOVT. ACCOUNT WITHIN THE DUE DATE OF FILING OF RETURN U/S. 139(1) OF THE ACT. THIS FACT IS NARRATED IN ORDER OF CIT(A) WHERE COMPLETE DETAILS OF PF IS FILED INCLUDING THE DATES OF DEPOSIT. IN VIEW OF THESE FACTS, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT F ROM RECORD IN THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT, WHICH HAS BEEN RECTIFIED BY AO W HILE ACTING U/S. 154 OF THE ACT. THE VERY ACTION OF AO IN INVOKING SECTION 154 OF THE ACT IS WITHOUT THE SANCTION OF LAW, REASON BEING FIRST OF ALL THIS IS A HIGHLY DEBATABLE ISSUE AND D EBATABLE ISSUES ARE NOT COVERED UNDER THE JURISDICTION OF SECTION 154 OF THE ACT. SECONDLY, NOW THE ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST REVENUE BY THE DECISION OF THI S JURISDICTIONAL 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 HAS 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. 3 ITA 644/K/2011 POLAR PHARMA INDIA LTD. . A.Y.02-03 IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT NOW THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY HONBLE JURISDICTIONAL HIGH COURT, H ENCE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AND THE SAME IS HEREBY UPHELD. APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . ! . , '# , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( !# !# !# !#) )) ) DATED 14TH NOVEMBER, 2011 /0 %12 3 JD.(SR.P.S.) '. 4 , 5''6- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT DCIT, C.C-XVI, KOLKATA 2 ,-*+ / RESPONDENT, POLAR PHARMA INDIA LTD., 113, PARK ST REET, KOL-16. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . => ,% / DR, KOLKATA BENCHES, KOLKATA - ,/ TRUE COPY, '.%?/ BY ORDER, 2 /ASSTT. REGISTRAR .