Baba Kaluroy Heemghar P Ltd, Hooghly V. A.C.I.T Cir - 1,Hooghly, Hooghly

ITA 793/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5128 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 12-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHY
• Keywords: Non-deduction of tax
• Section: 43B

Judgement Text

I.T.A. NO. 793/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 793/KOL/ 2013 ASSESSMENT YEAR: 2007-2008 BABA KALUROY HEEMGHAR P. LIMITED,.................. .................APPELLANT C/O. SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST. HOOGHLY-712 105 [PAN : AACCB 2483 R] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ..................RESPONDENT CIRCLE-1, HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, P.O. CHINSURAH, P.S. CHINSURAH, DIST. HOOGHLY-712 101 APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE , FOR THE ASSESSEE SHRI K.K. TRIPATHY, JCIT, SR. D.R., FOR THE DEPARTMENT NATE OF CONCLUDING THE HEARING : DECEMBER 17, 2015 DATE OF PRONOUNCING THE ORDER : JANUARY 06, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA DATED 19.02.2013 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ISSUE RAISED IN GROUND NO. 1 OF THIS APPEAL BY THE ASSESSEE RELATES TO THE DISALLOWANCE OF RS.14,351/- MADE BY THE ASSESSING OFFICER I.T.A. NO. 793/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 2 OF 4 AND CONFIRMED BY THE LD. CIT(APPEALS) UNDER SECTION 2(24)(X) READ WITH SECTION 36(1)(VA) OF THE INCOME TAX ACT ON ACCOUNT OF BELATED PAYMENT MADE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PROVI DENT FUND AFTER THE PRESCRIBED DUE DATE BUT BEFORE THE DATE OF FILING O F THE RETURN OF INCOME. 3. AT THE TIME OF HEARING BEFORE US, THE LD. REPRES ENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THIS ISSUE INVOLVED IN GROUN D NO. 1 OF ASSESSEES APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSE E, INTER ALIA, BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS.- VIJAY SHREE LIMITED (ITAT NO. 245 OF 2011 DATED 06.09.201 1), WHEREIN IT WAS HELD THAT EVEN THE EMPLOYEES CONTRIBUTION TO PROVI DENT FUND IS COVERED BY SECTION 43B READ WITH SECOND PROVISO THERETO, AS INTRODUCED BY FINANCE ACT, 2003 AND THE SAME IS, THEREFORE, ALLOW ABLE AS DEDUCTION IF PAID BEFORE THE DUE DATE FOR FILING OF THE RETURN O F INCOME FOR THE RELEVANT PERIOD. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF VIJAY SHREE LIMITED (SUPR A), WE DIRECT THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE MADE O N ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND AND ALLOW GROUND NO. 1 OF THE ASSESSEES APPEAL. 4. AS REGARDS THE COMMON ISSUE INVOLVED IN GROUNDS NO. 2 TO 4 OF THE ASSESSEES APPEAL RELATING TO THE DISALLOWANCE OF R S.88,442/- MADE UNDER SECTION 40(A)(IA), IT IS OBSERVED THAT THE AMOUNT O F RS.88,442/- PAID BY THE ASSESSEE TO ONE SHRI PRABHU SHARMA ON ACCOUNT O F CONTRACT LABOUR CHARGES WAS DISALLOWED BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) AS THERE WAS A FAIL URE ON THE PART OF THE ASSESSEE TO DEDUCT TAX AT SOURCE FROM THE SAID PAYM ENT AS REQUIRED BY THE PROVISIONS OF SECTION 194C. ON APPEAL, THE LD. CIT( APPEALS) CONFIRMED THE SAID DISALLOWANCE MADE BY THE ASSESSING OFFICER. 5. AT THE TIME OF HEARING BEFORE US, THE LIMITED CO NTENTION RAISED BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE AMOUNT OF RS.88,442/- IN QUESTION HAVING BEEN ALREADY OFFERED TO TAX BY SHRI PRABHU SHARMA, THE I.T.A. NO. 793/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 3 OF 4 ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT F OR NON-DEDUCTION OF TAX AT SOURCE FROM THE SAID PAYMENT AND THERE IS NO QUE STION OF MAKING DISALLOWANCE UNDER SECTION 40(A)(IA) AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P . LIMITED VS.- CIT REPORTED IN 293 ITR 226 (SC). HE HAS SUBMITTED THAT THE ASSESSING OFFICER MAY VERIFY THIS CLAIM OF THE ASSESSEE. THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD. WE, ACCORDINGLY, RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR THE LIMITED PURPOSE VERIF YING THE CLAIM OF THE ASSESSEE THAT THE CONCERNED PAYEE SHRI PRABHU SHARM A HAS ALREADY PAID TAX ON THE AMOUNT OF RS.88,442/- PAID BY THE ASSESS EE ON ACCOUNT OF LABOUR CHARGES AND ACCORDINGLY ALLOW APPROPRIATE RE LIEF TO THE ASSESSEE. KEEPING IN VIEW THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LIMITED (SUPRA), GR OUNDS NO. 2, 3 & 4 OF THE ASSESSEES APPEAL ARE ACCORDINGLY TREATED AS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 06, 2016. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 6 TH DAY OF JANAUARY, 2016 COPIES TO : (1) BABA KALUROY HEEMGHAR P. LIMITED, C/O. SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST. HOOGHLY-712 105 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, P.O. CHINSURAH, P.S. CHINSURAH, DIST. HOOGHLY-712 101 I.T.A. NO. 793/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 4 OF 4 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-XXXVI, KO LKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.