ACIT, Circle-4(1), Kolkata, Kolkata V. M/s. Gillapukri Tea Co. Ltd, Kolkata

ITA 821/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6085 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 21-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Keywords: Gift; Business expenditure; Competent authority; Revenue expenditure
• Section: 11A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM & SHRI M.BAL AGANESH, AM ] I.T.A. NO. 821/KOL/2017 ASSESSMENT YEAR: 2012-13 ACIT,CIRCLE-4(1), KOLKATA. -VS- M/S. GILLAPUKRI TEA CO. LTD. [PAN: AABCG 7895 F] (APPELLANT) (RESPOND ENT) FOR THE APPELLANT : SHRI S. DASGUPTA , ADDL. CIT, DR FOR THE RESPONDENT : SHRI RIP DAS, FCA DATE OF HEARING : 27.06.2018 DATE OF PRONOUNCEMENT : 11.07.2018 ORDER PER M.BALAGANESH, AM THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-17, KOLKATA, DATED 17.11.2016 FOR AY 2012-13. 2. GROUND NO. 1 OF REVENUES APPEAL IS AGAINST THE ORDER OF CIT(A) IN DELETING THE DISALLOWANCE MADE TO THE TUNE OF RS.3,16,929/- UNDE R THE HEAD NURSERY EXPENSES. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1: 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE AND IN LAW LD. CIT(A) ERRED IN ALLOWING THE GROUND TAKEN AGAINST DISALLOWANCE MADE TO THE TUNE OF RS.3,16,929/- UNDER NURSERY EXPENSES. 2 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 2 3. BRIEFLY STATED FACTS AS OBSERVED BY THE ASSESSIN G OFFICER ARE THAT THE ASSESSEE IS ENGAGED IN GROWING, MANUFACTURING AND SALE OF TEA. DURING THE COURSE OF HEARING, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS CLAIM ED NURSERY EXPENSES OF RS.3,16,929/- AND DEBITED THIS IN THE P&L ACCOUNT. THE ASSESSING OFFICER DISALLOWED THE SAID EXPENDITURE BY OBSERVING THAT THE EXPENSES CANNOT C OME UNDER THE HEAD REVENUE EXPENDITURE AS THE NURSERY EXPENSES GIVES ADVANTAGE TO THE ASSESSEE FOR A NUMBER OF YEARS. ON APPEAL, THE CIT(A) FOLLOWING THE DECISIO N OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF TASATI TEA LTD. REPORTED IN 262 ITR 388 DELETED THE DISALLOWANCE OF RS.3,16,929 ON ACCOUNT OF NURSERY EXPENSES. AGGRIE VED, REVENUE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE LD DR COULD NOT CONT ROVERT THE FACTUAL FINDING OF CIT (A) THAT THE NURSERY EXPENSES CLAIMED BY THE ASSESSEE A S DEDUCTION IS ACTUALLY THE WAGES FOR WORKERS EMPLOYED TO UPKEEP OF IMMATURE PLANTS WHICH ARE USED FOR REPLANTING OR IN FILLING AREAS WHERE THE TEA PLANTS ARE EITHER DEAD OR BECOME PERMANENTLY USELESS; AND ALSO THAT IT IS NOT THE CASE OF REVENUE THAT THIS E XPENDITURE CLAIMED WAS FOR ANY EXPANSION OR CULTIVATION IN ANY NEW AREA. THEREFOR E, THE ASSESSING OFFICER ERRED IN DISALLOWING THE EXPENDITURE TERMING IT TO BE OF A C APITAL NATURE AND NOT ON REVENUE ACCOUNT, WHICH HAS BEEN RIGHTLY DELETED BY THE CIT (A), WHICH REQUIRES NO INTERFERENCE FROM OUR PART SO, THIS GROUND OF REVENUES APPEAL I S DISMISSED. 5. BY PREFERRING GROUND NOS. 2 TO 5, THE REVENUE HA S CHALLENGED THE ACTION OF CIT(A) IN DELETING THE DISALLOWANCE OF RS.1,29,14,8 25/- WHICH WAS PAID BY THE ASSESSEE ON ACCOUNT OF ITS FAILURE TO DEPOSIT PF CONTRIBUTIO N DEDUCTED FROM THE SALARY OF THE EMPLOYEES. 6. BRIEF FACTS ARE THAT THE ASSESSING OFFICER NOTED THAT ASSESSEE PAID RS.1,29,14,825/- WHICH WAS LEVIED BY ASSTT. P.F. CO MMISSIONER (ADMN.) TINSUKIA ZONE, ON ACCOUNT OF THE ASSESSEES FAILURE TO DEPOS IT P.F CONTRIBUTION DEDUCTED FROM THE SALARY OF THE EMPLOYEES. THE ASSESSING OFFICER WAS THEREFORE OF THE VIEW THAT THE 3 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 3 AFORESAID PAYMENT WAS INTEREST WHICH WAS LEVIED FOR INFRACTION OF LAW, SINCE THE ASSESSEE FAILED TO DEPOSIT P.F CONTRIBUTIONS COLLEC TED FROM ITS EMPLOYEES. THEREFORE, THE ENTIRE AMOUNT OF RS.1,29,14,825/- WAS DISALLOWED BY ASSESSING OFFICER AND ADDED BACK TO INCOME RETURNED BY ASSESSEE. AGGRIEVED, THE ASS ESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), WHO WAS PLEASED TO DELETE THE SAME HOLDING THAT INTEREST CHARGED BY THE P.F. AUTHORITIES AS COMPENSATORY IN NATURE FOR THE DELAY CAUSED IN DEPOSITING THE P.F CONTRIBUTION AND, THEREFORE, ACCORDING TO HIM IS AN ALLOWABLE BUSINESS EXPENDITURE AND NOT PENALTY AS TREATED BY ASSESSING OFFICER. AGGRI EVED BY THE DECISION OF CIT(A), THE REVENUE IS BEFORE US. 7. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S INCLUDING THE PROVIDENT FUND SCHEME ACT, ASSAM ACT X OF 1955 [THE ASSAM TEA PLAN TERS PROVIDENT FUND & PENSION FUND & DEPOSITORY LINKED INSURANCE FUND SCHEME ACT, 1955] (HEREINAFTER REFERRED TO AS ASSAM P.F. ACT) AND THE HONBLE CALCUTTA HIGH CO URT ORDER IN HASIMARA INDUSTRIES LTD. VS. CIT REPORTED IN 200 ITR 659 (CAL), OTHER J UDICIAL PRECEDENTS OF HONBLE APEX COURT/ HIGH COURTS CITED BEFORE US AND THE ORDER PA SSED BY THE P.F. COMMISSIONER DATED 16.12.2011 LEVYING RS.1,29,14,825/- ON THE ASSESSEE COMPANY. 8. WE NOTE THAT P.F. COMMISSIONER INSTRUCTED THE AS SESSEE COMPANY TO DEPOSIT THE 15% STATUTORY INTEREST OF (RS. 96,30,304.22 + RS.27 ,12,868.60 + DAMAGE OF 0.3% COMPUTED AT RS.5,71,652.52 ) TOTAL OF RS.1,29,14,825.35 IN INSTALMENTS GIVEN I N THE MEMO NO. PF/L/2011/E-64/7496-49 DATED GHY THE 16.12 .2011. THE ASSESSEE COMPANY CLAIMED IT IS AN EXPENDITURE WHICH WAS DISALLOWED B Y THE ASSESSING OFFICER. ACCORDING TO ASSESSING OFFICER, THE AMOUNT LEVIED WAS BECAUSE OF INFRACTION OF LAW SINCE THE ASSESSEE WAS REQUIRED BY LAW TO DEPOSIT P.F CONTRIB UTION COLLECTED FROM ITS EMPLOYEES AND NOT WITHHOLDS IT FOR ITS OWN BUSINESS AS WORKIN G CAPITAL. ON APPEAL, THE CIT(A) DELETED THE SAME HOLDING THE INTEREST PAID BY THE A SSESSEE AS COMPENSATORY IN NATURE AND NOT PENAL AND SO THE REVENUE IS IN APPEAL. IN ORDE R TO ADJUDICATE THIS ISSUE, WE HAVE TO LOOK INTO THE RELEVANT PROVISION OF ASSAM PROVIDENT FUND ACT, WHICH GOVERNS THE 4 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 4 SUBJECT AND ISSUE BEFORE US. FOR THAT WE NEED TO E XTRACT RELEVANT PROVISIONS OF THE SAID ACT (ASSAM ACT X OF 1955): DEFINITION : IN THIS ACT, UNLESS THERE IS ANYTHIN G REPUGNANT IN THE SUBJECT OR CONTEXT:- (1) (A) CONTRIBUTIONS MEANS THE DEDUCTION FROM THE WAGES OF AN EMPLOYEE FOR DEPOSIT TO THE PROVIDENT FUND OR INSURANCE FUND AND THE AMOUNT PAY ABLE BY THE EMPLOYER IN RESPECT OF EACH EMPLOYEE TO THE PROVIDENT FUND OR INSURANCE FU ND UNDER THE SCHEME. (B) EMPLOYER MEANS ANY PERSON WHO IS THE PROPRIETOR O F A PLANTATION AND INCLUDING A MANAGING AGENT. MANAGER, SUPERINTENDENT, MANAGING DIRECTOR, DIRECTOR OR ANY OTHER PERSON WHO IS IN-CHARGE OF ANY PLANTATION. (C) 'FUND' MEANS THE PROVIDENT FUND OR THE PENSION FUND, 945(OR INSURANCE FUND),AS THE CASE MAY BE ESTABLISHED UNDER THE SCHEME. (D) 'EMPLOYEE' MEANS ANY PERSON WHO IS EMPLOYED (IN CLUDING APPRENTICE) TO DO ANY SKILLED OR UNSKILLED, MANUAL OR CLERICAL WORK IN OR IN CONNECT ION WITH A PLANTATION INCLUDING ITS LOCAL HEAD OFFICE, OFFICE, FACTORY, WORKSHOP, SCHOOL OR HOSPIT AL AND WHO GETS HIS WAGES DIRECTLY OR INDIRECTLY FROM THE EMPLOYEE BUT DOES NOT INCLUDE A PERSON WHO SE TOTAL WAGES EXCEED (RS.6500/- (RUPEES SIX THOUSAND FIVE HUNDRED PER MENSEM INCLUSIVE OF D EARNESS ALLOWANCE AND VALUE OF FOOD CONCESSION, OR A PERSON WORKING UNDER A CONTRACTOR IN WORK NOT DIRECTLY WITH CONNECTED WITH CULTIVATION AND MANUFACTURE OF TEA. 19 .. (E) MEMBER MEANS OF PROVIDENT FUND) OR THE PENSIO N FUND, (OR INSURANCE FUND), AS THE CASE MAY BE, (F) 'PLANTATION ' MEANS ANY TEA PLANTATION OR (16) TEA FACTORY : (G) 'SCHEME' MEANS THE ASSAM TEA PLANTATION PROVIDE NT FUND (L)(AND PENSION FUND (OR THE INSURANCE FUND) SCHEME FRAMED UNDER SECTION 3 (1). (H) 'WAGES' MEANS ANY AMOUNT CAPABLE OF BEING EXPRE SSED IN TERMS OF MONEY FOR THE TIME BEING PAYABLE TO AN EMPLOYEE BY THE EMPLOYER FOR WORKS IN OR IN CONNECTION WITH A PLANTATION AND INCLUDES DEARNESS ALLOWANCE, VALUE OF FOOD CONCESSI ON, AMOUNT PAYABLE FOR PLUCKING WHETHER CALCULATED ON TIME OR PIECE RATES OR OTHERWISE, AND LEAVE WITH WAGES AND MATERNITY ALLOWANCES OR BENEFITS, BUT DOE S NOT INCLUDE- (A) BONUS OR (B) COMMISSION. (8) 'INTEREST' MEANS THE AMOUNT PAYABLE AT THE RATE OF 15 PER CENT PER ANNUM BY THE EMPLOYER OVER THE COMBINED DUES OF EMPLOYEES AND EMPLOYER'S SHARE OF CONTRIBUTION FOLLOWING DEFAULT IN DEPOSITING WITHIN 30 (THIRTY) DAYS OF ITS COLLECTIO N. 3(1) COMPULSORY PROVIDENT FUND, (L)PENSION AND INSU RANCE) SCHEME: (1) THE STATE GOVERNMENT MAY BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME A SCHEME TO BE CALLED THE ASSAM TEA PLANTATIONS PROVIDENT FUND AND PENSION FUND AND INSURANCE FUND) SCHEME FOR THE ESTABLISHMENT OF PROVIDENT FUND AND PENSION FUND AND INSURANCE FUND FOR PROVIDING LIFE ASSURANCE COVERAGE FOR THE EMPLOYEES EMPLOYED IN PLANTATION AND SPECIFY THE PLANTATIONS TO WHICH THE SAME SHALL APPLY. (2) A SCHEME FRAMED UNDER THE PROVISION OF SUBSECTI ON (1) MAY PROVIDE FOR ALL OR ANY OF THE MATTERS SPECIFIED IN THE SCHEDULE. (3) THE CONTRIBUTION WHICH SHALL BE PAID BY THE EMP LOYER TO THE PROVIDENT FUND SHALL BE TWELVE PER CENT OF THE TOTAL WAGES INCLUDING ALL SUCH ALLO WANCES AS ARE INCLUDED WITHIN WAGES AS DEFINED IN CLAUSE (H) OF SECTION 2 FOR THE TIME BEI NG PAYABLE TO EACH OF THE EMPLOYEES AND THE EMPLOYERS CONTRIBUTION SHALL BE EQUAL TO THE CONTRI BUTIONS PAYABLE BY THE EMPLOYER IN RESPECT OF HIM. PROVIDED THAT WHERE THERE EXISTS ANY PROVIDENT FUND IN ANY PLANTATION AT THE COMMENCEMENT OF THIS ACT AND THE RATE OF CONTRIBUTI ON PAYABLE BY EITHER THE EMPLOYEE OR EMPLOYER IS HIGHER THAN WHAT HAS BEEN PRESCRIBED AB OVE, THE EMPLOYEE SHALL HAVE THE OPTION 5 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 5 WITHIN SUCH PERIOD AS MAY BE FIXED BY THE BOARD IN ITS MEETING TO ELECT EITHER TO CONTINUE TO SUBSCRIBE TO THE EXISTING PROVIDENT FUND OR JOIN TH E PROVIDENT FUND ESTABLISHED BY THIS ACT ACT BUT THE ELECTION ONCE MADE SHALL NOT CHANGED EXCEPT WITH THE PERMISSION OF THE BOARD. PROVIDED FURTHER THAT IN RESPECT OF THE EMPLOYEES OPTING TO SUBSCRIBE TO THE EXISTING PROVIDENT FUND AS ABOVE THE OBLIGATION OF THE EMPLOYER AND THE EMPLOY EE TO CONTRIBUTE TO THE EXISTING PROVIDENT FUND SHALL CONTINUE AND SHALL NOT BE AFFECTED BY TH E PROVISIONS OF THIS ACT. (13) PROVIDED THAT IF THE EMPLOYER FAILS TO DEPOSIT THE CONTRIBUTION WHICH HE IS REQUIRED TO MAKE UNDER CLAUSE (A) WITHIN 15 (FIFTEEN) DAYS OF THE CL OSE OF EVERY MONTH, THE EMPLOYER SHALL BE LIABLE TO PAY INTEREST AT THE RATE OF 15% PER ANNUM ON THE ARREAR TILL IT IS DEPOSITED. (14) PROVIDED FURTHER THAT THE EMPLOYER SHALL BE LI ABLE TO PAY THE INTEREST ALONG WITH THE REQUIRED CONTRIBUTION TO MAKE UNDER CLAUSE (A). (B) THE CENTRAL GOVERNMENT MAY CONTRIBUTE TO THE INSURANCE FUND IN RELATION TO EACH EMPLOYEE COV ERED BY THE SCHEME, AN AMOUNT REPRESENTING ONE-HALF OF THE CONTRIBUTION WHICH AN EMPLOYER IS REQUIRED BY CLAUSE (A) TO MAKE. (C) THE EMPLOYER SHALL PAY INTO THE INSURANCE FUND SUCH FURTHER SUM OF MONEY, NOT EXCEEDING ONE-FORTH OF THE CONTRIBUTION WHICH HE IS REQUIRED TO MAKE UNDER CLAUSE (A) AS THE BOARD MAY, WITH DUE APPROVAL OF THE GOVERNMENT FROM TIME TO TI ME, DETERMINE TO MEET ALL THE EXPENSES IN CONNECTION WITH THE ADMINISTRATION OF INSURANCE SCH EME. (D) THE CENTRAL GOVERNMENT MAY PAY INTO THE INSURANCE FUND SUCH FURTHER SUM OF MONEY R EPRESENTING ONE-HALF OF THE SUM PAYABLE BY THE EMPLOYER UNDER CLAUSE (C) TO MEET ALL THE EXPEN SES IN CONNECTION WITH THE ADMINISTRATION OF INSURANCE SCHEME. (E) THE INSURANCE FUND SHALL VEST IN THE BOARD OF TRUSTEES AND SHALL BE ADMINISTERED IT IN SUCH MANNER AS MAY BE SPECIFIED IN THE SCHEME. (F) THE INSURANCE SCHEME MAY PROVIDE THAT ANY OF ITS PROVISIONS SHALL TAKE E FFECT EITHER PROSPECTIVELY OR RETROSPECTIVELY ON SUCH DATE AS MAY BE SPECIFIED IN THIS BEHALF IN THA T SCHEME. 4. DATE OF OPERATION OF THE SCHEME : A SCHEME FRAM ED UNDER THIS ACT MAY PROVIDE AN OF ITS PROVISION SHALL COME INTO FORCE WITH EFFE CT FROM SUCH DATE AS MAY BE SPECIFIED IN THIS BEHALF, IN THE SCHEME. SUB-SECTION (4) (A), (B), (C ), (D), (E), (F) INSERTED BY ASSAM ACT IX OF 1984. PROVISION INSERTED BY ASSAM ACT XIV OF 2002. 7. PENALTIES: (1) WHOEVER, FOR THE PURPOSE OF AVOID ING ANY PAYMENT TO BE MADE BY HIMSELF UNDER THIS ACT OR UNDER ANY SCHEME OR OF ENABLING A NY OTHER PERSON TO AVOID SUCH PAYMENT, KNOWINGLY MAKES OR CAUSES TO BE MADE ANY FALSE STAT EMENT OR FALSE REPRESENTATION SHALL BE PUNISHABLE WITH IMPRISONMENT FOR A TERM WHICH MAY E XTEND TO ONE YEAR, OR WITH FINE WHICH MAY EXTEND TO FIVE THO USAND RUPEES, OR WITH BOTH. (2)(1A) AN EMPLOYER WHO CONTRAVENES, OR MAKE DEFAUL T IN COMPLYING WITH THE PROVISIONS OF SECTION 3 OF THE ACT IN SO FAR AS IT RELATES TO THE PAYMENT OF ADMINISTRATIVE CHARGES, SHALL BE PUNISHABLE WITH IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO THREE YEAR, BUT (A) WHICH SHALL NOT BE L ESS THAN ONE YEAR AND A FINE OF RUPEES TEN THOUSAND IN CASE OF DEFAULT IN PAYMENT OF THE EMPLO YEE'S CONTRIBUTION WHICH HAS BEEN DEDUCTED BY THE EMPLOYER FROM THE EMPLOYEE'S WAGES (B) WHIC H SHALL NOT BE LESS THAN SIX MONTH IN ANY OTHER CASE AND SHALL ALSO BE LIABLE TO FINE WHICH M AY EXTEND TO FIVE THOUSAND RUPEES . 7A. WHOEVER, HAVING BEEN CONVICTED BY A COURT OF AN OFFENCE PUNISHABLE UNDER THIS SCCHEME OR THE PENSION SCHEME COMMITS THE SAME OFFE NCE SHALL BE SUBJECT FOR EVERY SUCH SUBSEQUENT OFFENCE TO IMPRISONMENT FOR AS TERM WHIC H MAY EXTEND TO FIVE YEARS BUT WHICH SHALL NOT BE LESS THAN TWO YEARS AND SHALL ALSO BE LIABLE TO A FINE MAY EXTEND TO TWENTY FIVE THOUSAND RUPEES. 7AA. (1) NOTWITHSTANDING ANYTHING CONTAINED IN THE CODE OF CRIMINAL PROCEDURE, OFFENCE RELATING TO DEFAULT IN PAYMENT OF CONTRIBUTION BY T HE EMPLOYER PUNISHABLE UNDER THIS ACT SHALL BE COGNISABLE. (2) NO COURT INFERIOR TO THAT OF A M AGISTRATE OF THE FIRST CLASS SHALL TRY ANY OFFENCE THIS ACT OR THE SCHEME OR THE PENSION SCHEM E. 7(2) A SCHEME FRAMED UNDER THIS ACT MAY PROVIDE THAT ANY PERSON WHO CONTRAVENES, OR MAK ES DEFAULT IN COMPLYING WITH ANY OF THE 6 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 6 PROVISIONS THEREOF SHALL BE PUNISHABLE WITH IMPRISO NMENT FOR A TERM WHICH MAY EXTEND TO ONE YEAR, OR WITH FINE WHICH MAY EXTEND TO FOUR THOUSAN D RUPEES, OR WITH BOTH, 3. NO COURT SHALL TAKE COGNIZANCE OF ANY OFFENCE PU NISHABLE UNDER ANY SUCH SCHEME EXCEPT ON A REPORT IN WRITING OF THE FACTS CONSTITUTING THE O FFENCE MADE BY AN INSPECTOR WITH THE PREVIOUS SANCTION OF SUCH AUTHORITY AS MAY BE SPECIFIED IN T HIS BEHALF BY THE STATE GOVERNMENT. 11. RESPONSIBILITY OF COLLECTION OF CONTRIBUTION: E VERY EMPLOYER SHALL BE RESPONSIBLE FOR COLLECTION OF THE CONTRIBUTIONS, THEIR REMITTANCES IN ACCORDANCE WITH THE PROVISIONS OF THE SCHEME AND MAINTENANCE OF NECESSARY RECORDS IN RESP ECT OF MEMBERS OF HIS TEA PLANTATION OR TEA FACTORY AND SHALL BEAR THE COST THEREOF. 11A. IF THE EMPLOYER FAILS TO DEPOSIT EMPLOYERS C ONTRIBUTION TOGETHER WITH THE EMPLOYEES SHARE OF CONTRIBUTION WITHIN 30 (THIRTY) DAYS OF IT S COLLECTION, THE EMPLOYER SHALL BE LIABLE TO PAY INTEREST AT THE RATE OF 15 PER CENT PER ANNUM ON TH E ARREAR TILL IT IS DEPOSITED. 14. ACCUMULATION IN THE PROVIDENT FUND TO BE TRANSF ERRED TO THE FUND UNDER THE SCHEME : ON THE APPLICATION OF THE SCHEME TO A PLANTATION, T HE ACCUMULATION IN ANY EXISTING PROVIDENT FUND STANDING TO THE CREDIT OF SUCH EMPLOYEES AS BE COME MEMBERS OF THE PROVIDENT FUND ESTABLISHED UNDER THE SCHEME, SHALL, NOTWITHSTANDIN G ANYTHING CONTAINED IN ANY LAW FOR THE TIME BEING IN FORCE OR ANY DEED OR INSTRUMENT ESTABLISHI NG THE PROVIDENT FUND BE TRANSFERRED TO THE FUND ESTABLISHED UNDER THE SCHEME. 15. MODE OF RECOVERY OF MONEY DUE FROM EMPLOYER : ANY AMOUNT DUE FROM THE EMPLOYER IN RELATION TO A PLANTATION TO WHICH THE ACT OR ANY SC HEME FRAMED THEREUNDER APPLIES IN RESPECT OF ANY CONTRIBUTION PAYABLE TO THE PROVIDENT FUND OR T HE PENSION FUND AS THE CASE MAY BE, DAMAGES RECOVERABLE UNDER SECTION 16 OF THE ACT, ACCUMULATION REQUIRED TO BE TRANSFERRED UNDER SECTI ON 14 OR ANY CHARGES PAYABLE BY HIM UNDER ANY PROVISIONS OF THIS ACT OR ANY PROVISI ONS OF THE SCHEME FRAMED THEREUNDER, MAY IF THE AMOUNT IS IN ARREAR, BE RECOVERED BY THE GOVERN MENT OR A PERSON AUTHORISED BY IT IN THE SAME MANNER AS AN ARREAR OF LAND REVENUE. 16. POWER TO RECOVER DAMAGES: WHERE AN EMPLOYER MAK ES A DEFAULT IN THE PAYMENT OF CONTRIBUTION TO THE PROVIDENT FUND OR IN THE TRANSF ER OF ACCUMULATIONS REQUIRED TO BE TRANSFERRED BY HIM UNDER SECTION 14 OR IN THE PAYME NT OF ANY CHARGES PAYABLE UNDER ANY OTHER PROVISIONS OF THIS ACT OR THE SCHEME FRAMED THEREUN DER, THE GOVERNMENT OR ANY OTHER PERSON AUTHORISED BY IT MAY RECOVER FROM THE EMPLOYER SUCH DAMAGES, NOT EXCEEDING THE AMOUNT OF ARREAR, AS IT MAY THING FIT TO IMPOSE. 16A.(1) WHERE AN EMPLOYER IS CONVICTED OF AN OFFENC E OF MAKING DEFAULT IN THE PAYMENT OF ANY CONTRIBUTION TO THE PROVIDENT FUND, PENSION FUND OR INSURANCE FUND OR IN THE TRANSFER OF ACCUMULATIONS REQUIRED TO BE TRANSFERRED BY HIM UND ER SECTION 14, THE COURT MAY, IN ADDITION TO AWARDING ANY PUNISHMENT, BY AN ORDER IN WRITING, RE QUIRE HIM WITHIN A PERIOD SPECIFIED IN THE ORDER (WHICH THE COURT MAY, IT IF THINKS FIT AND AN APPLICATION IN THAT BEHALF, FROM TIME TO TIME, EXTEND), TO PAY THE AMOUNT OF CONTRIBUTIONS OR TRAN SFER THE ACCUMULATIONS, AS THE CASE MAY BE IN RESPECT OF WHICH THE OFFENCE WAS COMMITTED. (2) WHERE AN ORDER IS MADE UNDER SUB-SECTION (1) THE EM PLOYER SHALL NOT BE LIABLE UNDER THIS ACT IN RESPECT OF THE CONTRIBUTION OF THE OFFENCE DURING T HE PERIOD OF EXTENDED PERIOD, IF ANY, ALLOWED BY THE COURT, BUT IF ON THE EXPIRY OF SUCH PERIOD O F EXTENDED PERIOD, AS THE CASE MAY BE THE ORDER OF THE COURT HAS BEEN FULLY COMPLIED THE EMPL OYER SHALL BE DEEMED TO HAVE COMMITTED A FURTHER OFFENCE AND SHALL BE PUNISHED WITH IMPRISON MENT IN RESPECT THEREOF OF UNDER SECTION 7 AND SHALL ALSO BE LIABLE TO PAY FINE WHICH MAY EXTE ND TO ONE HUNDRED RUPEES FOR EVERYDAY AFTER SUCH EXPIRY ON WHICH ORDER HAS NOT BEEN COMPLIED WI TH. 16B. WHERE AN EMPLOYER, IN RELATION TO AN ESTABLISH MENT, TRANSFERS THAT ESTABLISHMENT IN WHOLE OR IN PART BY SALE, GIFT, LEASE OR LICENCE OR IN AN Y OTHER MANNER WHATSOEVER, THE EMPLOYER AND 7 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 7 THE PERSON TO WHOM THE ESTABLISHMENT IS SO TRANSFER RED SHALL JOINTLY AND SEVERALLY BE LIABLE TO PAY THE CONTRIBUTION AND OTHER SUMS DUE FROM THE EM PLOYER UNDER ANY PROVISION OF THIS ACT OR THE SCHEME, AS THE CASE MAY BE, IN RESPECT OF THE P ERIOD UPTO THE DATE OF SUCH TRANSFER. 9. FROM A PERUSAL OF THE ASSAM ACT X OF 1955 (HEREI NAFTER THE ACT X OF 1955), THE SCHEME ENVISAGED BY THE LEGISLATURE IS TO PROVI DE COMPULSORY PROVIDENT FUND FOR EMPLOYEES EMPLOYED IN TEA PLANTATION IN ASSAM. THE REFORE, THE ACT X OF 1955 SECTION. 2(A) DEFINES CONTRIBUTION WHICH MEANS PR OVIDENT FUND FOR A CLASS OF EMPLOYEES DEFINED IN SEC. 2(D) (SUPRA) BY THE EMPLO YERS (IN THIS CASE THE ASSESSEE ) AS DEFINED IN SEC. 2(B) (SUPRA). AS PER SEC. 3(1) AND THE SCHEME OF THE ACT, THE STATE GOVT. BY NOTIFICATION IN THE GAZETTE FRAMES A SCHEME CALL ED THE ASSAM TEA PLANTATION PROVIDENT FUND AND PENSION FUND FOR THE ESTABLISHM ENT OF PROVIDENT FUND AND PENSION FUNDS FOR THE EMPLOYEES EMPLOYED IN PLANTATION. AS PER SUB SEC. 3 OF SEC. 3 OF THE SAID ACT, THE CONTRIBUTION WHICH SHALL BE PAID BY THE EM PLOYER TO THE PF SHALL BE 12% OF THE TOTAL WAGES INCLUDING ALL SUCH ALLOWANCES AS ARE IN CLUDED WITH ITS WAGES AS DEFINED IN CLAUSE (H) OF SEC. 2 AND THE EMPLOYERS CONTRIBUTIO N SHALL BE EQUAL TO THE CONTRIBUTIONS PAYABLE BY THE EMPLOYER TO THE EMPLOYEE. AS PER 3 RD PROVISO TO SEC. 3, IF THE EMPLOYER FAILS TO DEPOSIT THE CONTRIBUTIONS WHICH HE IS REQU IRED TO MAKE UNDER CLAUSE (A) OF SEC. 2 WITHIN 15 DAYS OF THE CLOSE OF EVERY MONTH OR THE E MPLOYER IN CASE HE FAILS TO DEPOSIT THE EMPLOYERS CONTRIBUTION TOGETHER WITH THE EMPLO YEES SHARE OF CONTRIBUTIONS WITHIN 30 DAYS OF ITS COLLECTION, THEN IN THAT CASE HE SHA LL BE LIABLE TO PAY INTEREST AT THE RATE OF 15 % PER ANNUM ON THE ARREAR TILL IT IS DEPOSITED. SO WHEN THE LEGISLATURE INSERTED THE DEFINITION CLAUSE OF INTEREST AND SEC. 11A SIMU LTANEOUSLY VIDE ASSAM ACT 1 OF 1989, THE DEFINITION OF INTEREST MEANS THE AMOUNT PAYAB LE AT THE RATE OF 15% BY THE EMPLOYER OVER THE COMBINED DUES OF EMPLOYEES AND EM PLOYERS SHARE OF CONTRIBUTION FOLLOWING DEFAULT IN DEPOSITING WITHIN 30 DAYS OF ITS COLLECTION. TH E EXPRESSION DEFAULT HAS BEEN INTERPRETED ...... THE EXPRESSION DEFAULT IS SYNONYMOUS WITH FAILURE TO PAY. THE EMPLOYERS LIABILITY FOR DAMAGES IS ATTRACTED THE M OMENT HE MAKES DEFAULT BY THE HONBLE SUPREME COURT IN ORGANIC CHEMICAL INDUSTRIES VS. UN ION OF INDIA AIR 1979 SC 1803. TAKING NOTE OF THIS INTERPRETATION, THE HONBLE CAL CUTTA HIGH COURT HELD AS UNDER: 8 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 8 ...... THE EXPRESSION DEFAULT IS SYNONYMOUS WIT H FAILURE TO PAY. THE EMPLOYERS LIABILITY FOR DAMAGES IS ATTRACTED THE MOMENT HE MAKES DEFAUL T. THE SUPREME COURT IN ORGANIC CHEMICALS (1979) 55 FJR 283; AIR 1979 SC 1803, HAS CONSIDERED THIS QUESTION. THEREFORE, THE SUPREME COURT HELD AS FOLLOWS (AT PA GE 304 OF 55 FJR): THE EXPRESSION, 'DAMAGES' OCCURRING IN SECTION 14B IS, IN SUBSTANCE. A PENALTY IMPOSED ON THE EMPLOYER FOR THE BREACH OF THE STATUTORY OBL IGATION. THE OBJECT OF IMPOSITION OF PENALTY UNDER SECTION 14B IS NOT MERELY 'TO PROVIDE COMPENSATION FOR THE EMPLOYEES'. WE ARE CLEARLY OF THE OPINION THAT THE IMPOSITION OF D AMAGES UNDER SECTION 14B SERVES BOTH THE PURPOSES. IT IS MEANT TO PENALISE DEFAULTING EM PLOYERS AS ALSO TO PROVIDE PREPARATION FOR THE AMOUNT OF LOSS SUFFERED BY THE EMPLOYEES. IT IS NOT ONLY A WARNING TO EMPLOYERS IN GENERAL NOT TO COMMIT A BREACH OF THE STATUTORY REQ UIREMENTS OF SECTION 6, BUT AT THE SAME TIME IT IS MEANT TO PROVIDE COMPENSATION OR REDRESS TO THE BENEFICIARIES, I.E., TO RECOMPENSE THE EMPLOYEES FOR THE LOSS SUSTAINED BY THEM. THERE IS NOTHING IN THE SECTION TO SHOW THAT THE DAMAGES MUST BEAR RELATIONSHIP TO THE LOSS WHICH IS CAUSED TO THE BENEFICIARIES UNDER THE SCHEME. THE WORD 'DAMAGES' IN SECTION 14B IS RELATED TO THE WORD 'DEFAULT'. THE WORDS USED IN SECTION 14B ARE 'DEFAU LT IN THE PAYMENT OF CONTRIBUTION' AND, THEREFORE, THE WORD 'DEFAULT' MUST BE CONSTRUED IN THE LIGHT OF PARA 38 OF THE SCHEME WHICH PROVIDES THAT THE PAYMENT OF CONTRIBUTION HAS GOT TO BE MADE BY THE 15TH OF THE FOLLOWING MONTH AND, THEREFORE, THE WORD 'DEFAULT' IN SECTION 14B MUST MEAN 'FAILURE IN PERFORMANCE' OR 'FAILURE TO ACT'. AT THE SAME TIME, THE IMPOSITION OF DAMAGES UNDER SECTION 14B IS TO PROVIDE REPARATION FOR THE AMOUNT OF LOSS SUFFERED BY THE 'EMPLOYEES.' 7. IT IS, THEREFORE, CLEAR THAT THE SUPREME COURT D ID NOT ACCEPT THE CONTENTION THAT THE AWARD OF DAMAGES UNDER SECTION 14B MUST BE, IN ESSE NCE, THE PECUNIARY REPARATION FOR LOSS OR INJURY SUSTAINED BY ONE PERSON THROUGH THE FAULT OR NEGLIGENCE OF ANOTHER. 8. THE SUPREME COURT FURTHER OBSERVED AS FOLLOWS (A T PAGE 303 OF 55 FJR) : 'WITH RESPECT, THESE HIGH COURTS HAVE OBVIOUSLY FAL LEN INTO AN ERROR IN READING THE WORD DAMAGES IN SECTION 14B IN ISOLATION, BY TRYING TO CONSTRUE THE WORD IN A PURELY LEGALISTIC SENSE. THESE HIGH COURTS HAVE OVERLOOKED THAT WE ARE NOT CONCERNED IN INTERPRETING WHAT DAMAGES MEANS IN THE REALM OF CON TRACT OR TORT BUT THE WORD HAD TO BE GIVEN ITS TRUE MEANING, IN CONSONANCE WITH THE OBJE CTS AND PURPOSE OF THE LEGISLATION.' 9. IT IS TRUE THAT THE DAMAGES CONTEMPLATED UNDER S ECTION 14B COVER COMPENSATION FOR ACTUAL LOSSES AND PUNITIVE ELEMENT BUT ONE CANNOT B E SEPARATED FROM THE OTHER IN HOLDING THAT A PART OF IT RELATES TO THE COMPENSATION AS AN D BY WAY OF INTEREST AND THE OTHER PART BEING A DETERRENT FOR FULFILLING THE OBLIGATION UND ER THE ACT. THE AMOUNT LEVIED UNDER SECTION 14B MUST PARTAKE OF THE CHARACTER OF PENALT Y AND, ACCORDINGLY, IT COULD NOT BE ALLOWED AS A DEDUCTION. 10. THE HONBLE CALCUTTA HIGH COURT CONCLUDED IN PA RA 20 AS UNDER: IN OUR VIEW, THE COLOUR AND CONTENT, NATURE AND C HARACTER AND SHADES OF THE MEANING OF THE WORD ' DAMAGES ' HAVE TO BE UNDERSTOOD IN THE C ONTEXT OF THE SCHEME OF THE EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVIS IONS ACT, 1952. THE MEANING ASSIGNED TO THE SAID WORD BY THE SUPREME COURT IN O RGANIC'S CASE, AIR 1979 SC 1803, MUST BE TAKEN TO BE THE GOVERNING FACTOR IN DETERMI NING THE QUESTION WHETHER THE 9 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 9 DAMAGES UNDER SECTION 14B ARE PENAL OR COMPENSATORY IN NATURE. THE EXPRESSION ' DAMAGES ' OCCURRING IN SECTION 14B IS, IN SUBSTANCE , A PENALTY IMPOSED ON THE EMPLOYER FOR THE PERIOD OF INFRINGEMENT OF A STATUTORY OBLIG ATION. THE PAYMENT MADE BY THE ASSESSEE IN THIS CASE, ALTHOUGH TERMED AS INTEREST, IN FACT, REPRESENTS DAMAGES UNDER SECTION 14B OF THE ACT AND HENCE IS NOT ALLOWABLE A S A DEDUCTION. 11. WE FURTHER NOTE THAT THE MODE OF RECOVERY OF MO NEY DUE FROM EMPLOYER IS PROVIDED OR BY SEC. 15 OF THE ACT. WE NOTE THAT TH E DEFINITION OF INTEREST HAS BEEN INSERTED BY ASSAM ACT I OF 1989 AND SIMULTANEOUS IN SERTION OF SEC. 11(A) WAS MADE BY ASSAM ACT I OF 1989. FOR THE SAKE OF CONVENIENCE W E REPRODUCE BOTH AGAIN AS UNDER; INTEREST MEANS THE AMOUNT PAYABLE AT THE RATE OF 15 PER CENT PER ANNUM BY THE EMPLOYER OVER THE COMBINED DUES OF EMPLOYEES AND EMPLOYER'S SHARE OF CONTRIBUTION FOLLOWING DEFAULT IN DEPOSITING WITHIN 30 (THIRTY) DAYS OF ITS COLLECTIO N. SEC. 11. RESPONSIBILITY OF COLLECTION OF CONTRIBUT ION: EVERY EMPLOYER SHALL BE RESPONSIBLE FOR COLLECTION OF THE CONTRIBUTIONS, THEIR REMITTANCES IN ACCORDANCE WITH THE PROVISIONS OF THE SCHEME AND MAINTENANCE OF NECESSARY RECORDS IN RESP ECT OF MEMBERS OF HIS TEA PLANTATION OR TEA FACTORY AND SHALL BEAR THE COST THEREOF. SEC. 11A. IF THE EMPLOYER FAILS TO DEPOSIT EMPLOYE RS CONTRIBUTION TOGETHER WITH THE EMPLOYEES SHARE OF CONTRIBUTION WITHIN 30 (THIRTY) DAYS OF IT S COLLECTION, THE EMPLOYER SHALL BE LIABLE TO PAY INTEREST AT THE RATE OF 15 PER CENT PER ANNUM ON TH E ARREAR TILL IT IS DEPOSITED. 12. FROM A CONJOINT READING OF BOTH THE DEFINITION AND SEC. 11 AND 11A, THE INTENTION OF LEGISLATURE IS CLEAR THAT IF THE EMPLOYER DEFAUL TS IN DEPOSITING WITHIN 30 DAYS OF ITS COLLECTION OF EMPLOYEES AND EMPLOYERS SHARE OF CONT RIBUTION (COMBINED DUES) THEN INTEREST OF 15% PER ANNUM, THE EMPLOYER NEEDS TO PA Y OVER THE COMBINED AMOUNT DUE. THE LEGISLATURE BY INSERTING THIS DEFINITION HAS SI MULTANEOUSLY INSERTED SEC. 11(A) TO SEC. 11 WHICH PRESCRIBED THE RESPONSIBILITY OF EVERY EMP LOYER TO COLLECT THE CONTRIBUTION AND REMITTANCE THEREOF; AND SEC. 11A SADDLES THE LIABIL ITY ON THE EMPLOYER WHO SHALL BE LIABLE TO PAY INTEREST AT THE RATE OF 15% PER ANNUM ON THE ARREARS TILL IT IS DEPOSITED. IT IS ALSO FURTHER PROVIDED THAT THE EMPLOYER SHALL BE LI ABLE TO PAY THE INTEREST ALONG WITH THE REQUIRED CONTRIBUTION TO MAKE UNDER CLAUSE (A) OF S EC. 11 OF THE ACT X OF 1955. THIS RESPONSIBILITY OF THE EMPLOYER IS REITERATED IN SEC TION 11 OF THE SAID ACT WHEREIN THE RESPONSIBILITY OF EMPLOYER IS MANDATED THAT HE SHAL L BE RESPONSIBLE FOR COLLECTION OF THE 10 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 10 CONTRIBUTIONS, THEIR REMITTANCE IN ACCORDANCE WITH THE SCHEME AND BEAR THE COST THEREOF AS PER SEC. 11 OF THE SAID ACT. 13. WE TAKE NOTE OF THE OTHER SPECIFIED PENAL CONSEQUENCES IN CASE OF BREACH OF THE DUTY CASTED UPON THE EMPLOYER UNDER SEC. 7 ACT X OF 1955 WHICH PRESCRIBES CONVICTION BY INCARCERATION IN JAIL AND WITH FINE OR WITHOUT F INE IN CASE OF DEFAULT OF PAYMENT OF ADMINISTRATIVE CHARGES/CONTRIBUTION BY A COURT NOT INFERIOR TO THAT OF MAGISTRATE OF FIRST CLASS ON THE COMPLAINT PREFERRED BY AN INSPECTOR WI TH THE PREVIOUS SANCTION OF COMPETENT AUTHORITY IN CASE THE EMPLOYER HAS THE RE QUISITE MENS REA AS PRESCRIBED IN THE SECTION. 14. WE ALSO TAKE NOTE OF SEC. 16 WHICH PRESCRIBES A WARD OF DAMAGES BY THE GOVERNMENT/ AUTHORISED AUTHORITY. WE NOTE THAT THE UPPER CEILING OF 25% PRESCRIBED OF THE AMOUNT OF ARREARS HAS BEEN DELETED BY ASSAM ACT IX OF 1976 AND, THEREFORE, THERE IS NO FETTER FOR THE AUTHORISED PERSON TO AWARD THE DA MAGES IN CASE THERE IS VIOLATION OF SEC. 14, OR IN THE PAYMENT OF ANY CHARGES PAYABLE UNDER ANY OTHER PROVISIONS OF THIS ACT OR THE SCHEME FRAMED THEREUNDER. WE NOTE THAT IN THE INSTANT CASE, THE DAMAGES AWARDED BY THE AUTHORISED AUTHORITY ON 16.12.2011 IS TO THE TUNE OF RS.5,73,312.62 WHICH IS THE DAMAGES AS PER SEC. 16 OF THE ACT X OF 1955 AND TH AT THE ASSESSEE ITSELF HAS DISALLOWED AN AMOUNT OF RS.5,66,711/- WHICH IS REFLECTED IN FO RM NO. 3CD KEPT FROM PAGES 38 TO 45 AND THIS FACT IS EVIDENT FROM COLUMN 17 E(1) AT PAGE 40, WHICH THE ASSESSEE HAS SHOWN AS AMOUNTS DEBITED TO P&L ACCOUNT BEING EXPEN DITURE BY WAY OF PENALTY OR FINE FOR VIOLATIONS OF ANY LAWS FOR THE TIME BEING IN FO RCE. 15. THUS TAKING NOTE OF THE SCHEME OF THE ACT, THE RATIO LAID BY HONBLE SUPREME COURT IN ORGANIC CHEMICALS (SUPRA) AND HONBLE JURI SDICTIONAL HIGH COURT IN HASIMARA INDUSTRIES LTD. (SUPRA), WE ARE OF THE CONSIDERED O PINION THAT THE 15% OF STATUTORY INTEREST FOR DEFAULT FROM 23.07.2001 ONWARDS TILL THE ORDER PASSED BY T HE COMPETENT AUTHORITY ON 16.12.2011 (ON PRINCIPAL AMOUNT FOR A PERIOD FROM 23.07.2001 TO 07.01.2006 TO THE TUNE OF RS.1,13,24,310/- AND OTHE R AMOUNTS SAID IN THE ORDER DATED 11 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 11 16.12.2011 FOR COMMITTING THE DEFAULT IN DEPOSITING BOTH THE CONTRIBUTION IS A LEVY ON THE EMPLOYER ASSESSEE FOR DEFAULT IN THE PAYMENT OF CONTRIBUTION AND, THEREFORE, TAKING LIGHT FROM THE JUDICIAL PRECEDENTS DISCUSSED ABOVE, WE REVERSE THE ORDER OF THE CIT(A) AND UPHOLD THE ORDER OF THE ASSESSING OFFICER. HOW EVER, WE DIRECT THE ASSESSING OFFICER TO LOOK INTO THE CONTENTION OF ASSESSEE THA T IT HAS SUO MOTO DISALLOWED RS.5,66,711/- ON THIS ACCOUNT FROM TOTAL AMOUNT OF RS.1,29,14,825/- WHICH IF FOUND CORRECT, THEN RELIEF TO THAT EXTENT TO BE GIVEN TO THE ASSESSEE. BEFORE WE PART, THE ASSESSEES CONTENTION THAT CIT(A)S IMPUGNED ORDER IS RIGHT IN THE LIGHT OF THE ORDER OF THE HONBLE APEX COURT ORDER IN MAHALAKSHMI SUGAR M ILLS CO. VS. CIT IS MISPLACED BECAUSE IT WAS IN THE CONTEXT OF INTEREST PAYABLE O N THE ARREARS OF SUGARCANE CESS AS PER U.P. SUGARCANE CESS ACT, 1956 AND THE SAID DECISIO N AND OTHER DECISIONS OF HONBLE HIGH COURT WERE IN FACT TAKEN INTO CONSIDERATION AN D DISCUSSED BY THE HONBLE CALCUTTA HIGH COURT WHILE DECIDING HASIMARA INDUSTRIES LTD. (SUPRA). SO, WE FIND NO MERIT IN THE CONTENTION OF THE LD. COUNSEL OF ASSESSEE TO JU STIFY THE IMPUGNED ORDER OF LD. CIT(A). FOR THE REASON DISCUSSED ABOVE, WE REVERSE THE ORDER OF LD. CIT(A) AND UPHOLD THE ORDER OF AO. THUS THIS GROUND OF REVENUE IS ALLOWED. 16. IN THE RESULT, THE APPEAL OF REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 11.07.2018 SD/- SD/- [S.S. GODARA] [ M .BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 11.07.2018 SB, SR. PS 12 ITA NO.821/KOL/2017 M/S GILLAPUKRI TEA CO. LTD. A.YR. 2012-13 12 COPY OF THE ORDER FORWARDED TO: 1. ACIT, CIRCLE-4(1), KOLKATA. 2. M/S. GILLAPUKRI TEA CO. LTD., 9, BRABOURNE ROAD, KOLKATA-700 001. 3..C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S