DCIT, New Delhi V. M/s. Parasrampuria Synthetics Ltd., New Delhi

ITA 6623/DEL/2013

• Counselvise Citation: 662320114 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRISH BEDI
• Assessee Lawyers: P K JAIN
• Section: 43B; 143(3); 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D, NEW DELHI) BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER I.T.A. NO.6623 /DEL/2013 ASSESSMENT YEAR : 2009-10 DCIT, CIRCLE 14(1), VS. PARASRAMPURIA SYNTHETICS LTD., NEW DELHI C-36, HAUZ KHAS, NEW DELHI. GIR / PAN:AAACP4799E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMRISH BEDI, SR. DR RESPONDENT BY : SHRI P. K. JAIN, CA DATE OF HEARING : 03.09.2015 DATE OF PRONOUNCEMENT : 13.10.2015 ORDER PER KULDIP SINGH, JM: THE APPELLANT, DCIT, CIRCLE 14(1), NEW DELHI BY FI LING THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE ORDER DATED 02.09.2 013 PASSED BY LD. CIT(A) XVII, DELHI FOR THE ASSESSMENT YEAR 2009-2010 ON TH E GROUNDS INTER ALIA THAT: 1. 'ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.40,88,631 / - IGNORING THE FACT THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FAILED TO PROVE THAT COMPLIANCE WITH SECTION 43B OF THE ACT WAS MAD E BY IT. 1.2 ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.40,88,631/ - WITHOUT MENTIONING OF ANY DOCUMENTARY EVIDENCE PRODUCED BEF ORE IT DURING APPELLATE PROCEEDINGS BY THE ASSESSEE TO SUBSTANTIA TE ITS CLAIM. ITA NO.6623/DEL/2013 2 2. BRIEFLY STATED, THE FACTS OF THIS CASE ARE THAT DURING THE PROCESSING OF I.T. RETURN FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2009-2010 SHOWING NIL INCOME, THE CASE WAS PUT UNDER SCRUTINY AND CONSEQUENTLY, NOTICE U/S 143(3) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 26. 08.2010. SHRI P. K. JAIN, CA, LD. A.R. OF THE ASSESSEE APPEARED AND FILED REP LY AND DOCUMENTS. THE ASSESSEE (SICK COMPANY AS PER BIFR LETTER DATED 07. 11.2006 UNDER THE PROVISION OF SICK INDUSTRIAL COMPANIES SPECIAL PROV ISIONS ACT, 1985) HAVING ACCUMULATED LOSES OF RS.1,62,514.78 LAKHS, I S IN THE BUSINESS OF MANUFACTURE OF POLYESTER FILAMENT YARN, COTTON YARN , BLENDED YARN AND TERRY TOWEL. 3. ON THE BASIS OF EXAMINATION OF DOCUMENTS AND IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE A.O. HAS MADE AD DITION OF RS.40,88,631/-. THE ASSESSEES APPEAL PREFERRED BEFORE LD. CIT(A), HAS BEEN ALLOWED. FEELING AGGRIEVED, THE REVENUE HAS COME UP BY FILIN G THE PRESENT APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEAD LEARNED REPRESENTATIVES OF THE PART IES, GONE THROUGH THE DOCUMENTS RELIED UPON BY THE PARTIES AND CIRCUMSTAN CES OF THE CASE. 5. UNDISPUTEDLY, THE ASSESSEE COMPANY HAS BEEN DECL ARED AS SICK COMPANY AS PER BIFR LETTER DATE 07.11.2006 UNDER TH E PROVISIONS OF SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT 1985 HAVING ACCUMULATED LOSSES OF RS.1,62,514.78; THE ASSESSEE COMPANY HAD DEPOSITED RS.40,88,631/- I.E. EMPLOYEES CONTRIBUTION TO PROVI DENT FUND AFTER THE DUE DATE BUT BEFORE THE DUE DATE OF FILING OF RETURN FO R THE YEAR UNDER CONSIDERATION. ITA NO.6623/DEL/2013 3 6. THE SOLE QUESTION ARISES FOR DETERMINATION OF TH IS CASE IS; AS TO WHETHER LD. CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS.40,88,631/-, MADE BY THE A.O. TO DECIDE THE CONTROVERSY, PROVI SIONS CONTAINED U/S 43B(B) ARE REPRODUCED FOR FACILITY OF REFERENCE AS UNDER: 43B . NOTWITHSTANDING ANYTHING CONTAINED IN ASSESSMENT YEAR OTHER PROVISION OF THIS ACT, A DEDUCTION OTHERWISE ALLOWA BLE UNDER THIS ACT IN RESPECT OF (B) ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATIO N FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF EMPLOYEES , SHALL BE ALLOWED (IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIA BILITY TO PAY SUCH SUM WAS INCURRED BY THE ASSESSEE ACCORDING TO THE M ETHOD OF ACCOUNTING REGULARLY EMPLOYED BY HIM) ONLY IN COMP UTING THE INCOME REFERRED TO IN SECTION 28 OF THAT PREVIOUS YEAR IN WHICH SUCH SUM IS ACTUALLY PAID BY HIM. 7. A BARE PERUSAL OF THE PROVISIONS CONTAINED U/S 4 3B(B) OF THE ACT, GOES TO CRYSTALLIZE THAT NOW SECTION 43B(B) ARE HAVING O VERRIDING EFFECT, WHICH HAS MADE THE CONTRIBUTION ON ACCOUNT OF PROVIDENT F UND OR SUPERANNUATION FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WEL FARE OF EMPLOYEES EVEN AFTER THE DUE DATE OF RELEVANT ACT, BUT BEFORE THE DUE DATE OF FILING OF INCOME TAX RETURN U/S 139(1) OF THE I. T. ACT, 1961, ELIGI BLE FOR DEDUCTION. 8. HONBLE UTTARA KHAND HIGH COURT IN SIMILAR CASE ENTITLED CIT VS M/S. KUCHHA SUGAR CO. LTD. I.T.A. NO. 50 OF 2009 HELD TH AT DUE DATE REFERRED IN SECTION 36(1)(VA) OF THE INCOME TAX ACT MUST BE REA D IN CONJUNCTION WITH SECTION 43B(B) I.E. PAYMENT / CONTRIBUTION MADE TO THE P.F. AUTHORITIES ANY TIME BEFORE FILING OF RETURN FOR THE YEAR IN WHICH THE LIABILITY TO PAY ACCRUED, QUALIFIES FOR DEDUCTION, SO THE INSTANT CASE IS SQU ARELY COVERED BY THE JUDGEMENT CIT VS KUCHHA SUGAR CO. LTD. (SUPRA). ITA NO.6623/DEL/2013 4 9. IN THE LIGHT OF WHAT HAS BEEN DISCUSSED ABOVE, L D. CIT(A) HAS PASSED REASONED ORDER DELETING THE ADDITION OF RS.40,88,63 1/- MADE BY THE A.O. VIDE ORDER DATED 16.12.2011, CONSEQUENTLY, THE APPE AL OF REVENUE IS HEREBY DISMISSED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH OCT., 2015. SD./- SD./- ( T. S. KAPOOR) (KULDIP SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 13 TH OCT., 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 4/9 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 4,7,7,10/9 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 13/10/2015 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 13/10 SR. PS/PS 7 FILE SENT TO BENCH CLERK 13/10 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER