DCIT. Circle - 10(1), Kolkata , Kolkata V. M/s. Magnum Clothing Pvt. Ltd., Kolkata

ITA 678/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3145 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 12-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDAR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Earning of tax free income
• Section: 43B; 14A

Judgement Text

ITA NO. 678/KOL/2018 ASSESSMENT YEAR: 2010-2011 M/S. MAGNUM CLOTHING PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 678/KOL/2018 ASSESSMENT YEAR: 2010-2011 DEPUTY COMMISSIONER OF INCOME TAX,................. ......................APPELLANT CIRCLE-10(1), KOLKATA, AAHAYAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 -VS.- M/S. MAGNUM CLOTHING PVT. LIMITED,................. .....................RESPONDENT 133, CANNING STREET, KOLKATA-700 001 [PAN: AACCM 0783 F] APPEARANCES BY: SHRI SANKAR HALDAR, JCIT, SR. D.R. , FOR THE APPELLANT SHRI A.K. TIBREWAL, FCA AND SHRI AMIT AGARWAL, ADVO CATE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 10, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 28, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATA DAT ED 11.01.2018 AND THE GROUNDS RAISED BY THE REVENUE THEREIN READ AS U NDER:- (1) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.91,76,483/- ON ACCOUNT OF DEPOSITING THE PF/ESI PAYMENT BEYOND THE PRESCRIBED TIME DESPITE THE FACT THAT AS PER SECTION 36(1)(VA) EMPLOYEES CONTRIBUTION SHOULD HAVE BEEN DEPOSITED IN TIME AS PRESCRIBED IN THE RELEVANT LAW. SECTION 43B PERMITS ITA NO. 678/KOL/2018 ASSESSMENT YEAR: 2010-2011 M/S. MAGNUM CLOTHING PVT. LIMITED 2 DELAYED PAYMENT IF PAID BEFORE FILING OF ROI AS PER SECTION 139(1) IN CASE OF EMPLOYERS CONTRIBUTION A S LAID DOWN IN CIRCULAR NO. 22/2015 DATED 17.12.2015. (2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.64,344/- U/S 14A OF THE I.T. ACT , 1961. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS AGREED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, THE ISSUE INVOLV ED IN GROUND NO. 1 IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE, INTER A LIA, BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF VIJA Y SHREE LIMITED (ITAT 245 OF 2011 DATED 06.09.2011), WHEREIN IT WAS HELD THAT DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS P.F. CANNOT BE DI SALLOWED UNDER SECTION 43B IF THE SAME IS DEPOSITED BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME. RESPECTFULLY FOLLOWING THE SAID D ECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE UPHOLD THE IMPUGNED O RDER OF THE LD. CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE ON THIS ISSUE AND DISMISS GROUND NO. 1 OF THE REVENUES APPEAL. 3. AS REGARDS THE GROUND NO. 2, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED THEREIN RELATING TO DISALLOWANCE UNDER SECTION 14A IS ALSO SQUARELY COVERED IN FAVOUR OF T HE ASSESSEE, INTER ALIA, BY THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LIMITED VS.- CIT [378 ITR 33], WHEREIN IT WAS HELD THAT NO DISALLOWANCE UNDER SECTION 14A CAN BE MADE IF NO EXEMPT INCOME I S ACTUALLY EARNED BY THE ASSESESE IN THE RELEVANT YEAR. SINCE NO EXEMPT INCOME IN THE FORM OF DIVIDEND, ETC. WAS ACTUALLY EARNED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION, WE RESPECTFULLY FOLLOW THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LIMITED (SUPRA ) AND UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) DELETING THE DISALLOWANCE MADE ITA NO. 678/KOL/2018 ASSESSMENT YEAR: 2010-2011 M/S. MAGNUM CLOTHING PVT. LIMITED 3 BY THE ASSESSING OFFICER UNDER SECTION 14A. GROUND NO. 2 OF THE REVENUES APPEAL IS ACCORDINGLY DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 28, 2019. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 28 TH DAY OF FEBRUARY, 2019 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-10(1), KOLKATA, AAHAYAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (2) M/S. MAGNUM CLOTHING PVT. LIMITED, 133, CANNING STREET, KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.