DCIT, Circle - 4, Kolkata, Kolkata V. M/s. Tantia Constructions Ltd., Kolkata

ITA 823/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54607 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-08-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOUMITRA CHOW DHURY; T K CHAKRABORTY
• Assessee Lawyers: A K PARAMANIK
• Keywords: Question of law
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , ! . '# . ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] $ $ $ $ / I.T.A NO. 823/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX, VS. M/S. TANTIA CONSTRUCTIONS LTD. CIRCLE-4, KOLKATA. (PAN : AABCT 0811 E) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) DATE OF HEARING: 19.10.2011 DATE OF PRONOUNCEMENT: 21.10.2011 FOR THE APPELLANT : S/SHRI SOUMITRA CHOWDHURY & T. K. CHAKRABORTY FOR THE RESPONDENT: SHRI A. K. PARAMANIK . / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-IV, KOLKATA IN APPEAL NO 136/CIT(A)-IV/08-09 DATED 10.08.2009. ASSESSMENT WA S FRAMED BY ACIT, CIRCLE-4, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE DATED 20.11.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF EM PLOYEES CONTRIBUTION TOWARDS PF AND ESI NOT PAID WITHIN THE DUE DATES OF THE RESPECTIVE ACT S IN VIEW OF THE PROVISIONS SECTION 36(1)(VA) R.W.S 2(24)(X) OF THE ACT. FOR THIS, REVENUE HAS R AISED FOLLOWING THREE GROUNDS: 1. THAT LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN DELETING THE ADDITION OF RS.16,30,224/- WHICH WAS MADE U/S. 2(24)(X) DUE TO FAILURE OF THE ASSESSEE TO DEPOSIT EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI WITHIN D UE DATE OF THE RESPECTIVE RULES. 2. THAT LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON F ACTS, IN NOT CONSIDERING THE FACT THAT DEDUCTION OF RS.16,30,224/-, AS CLAIMED BY THE ASSE SSEE, IS INADMISSIBLE AS PER THE PROVISION OF SEC. 36(1)(VA) AND ALSO SUPPORTED BY T HE DECISION OF HONBLE ITAT, SPECIAL RANGE, KOLKATA, PRONOUNCED IN THE CASE OF ITC LTD. 3. THAT LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON F ACTS, IN NOT CONSIDERING THE FACT THAT DEDUCTION OF RS.16,30,224/-, AS CLAIMED BY THE ASSE SSEE, IS INADMISSIBLE AS PER THE PROVISION OF SEC. 36(1)(VA) AND ALSO SUPPORTED BY THE DECISION OF HONBLE ITAT, KOLKATA, PRONOUNCED IN THE CASE OF SANTIPARA TEA LTD. (ITA N O.1259 (KOL) OF 2008, DATED 22.01.2010). 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO NOTICED THAT ASSESSEE HAS NOT DEPOSITED A SUM OF RS.16,00,648/- 2 ITA 823/K/2010 M/S. TANTIA CONSTN. LTD.., A.Y.2006-07 TOWARDS EMPLOYEES CONTRIBUTION TO PF AND ESI WITHI N THE DUE DATES OF THE RESPECTIVE RULES, THEREFORE, NO DEDUCTION IN VIEW OF SECTION 36(1)(V A) R.W.S. 2(24)(X) OF THE ACT IS ALLOWABLE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO NOTED THAT THE ENTIRE PAYMENT OF THE EMPLOYEES CONTRIBUTION TO PF & ESI WAS DEPOSITED W ITHIN THE DUE DATE OF FILING OF INCOME TAX RETURN U/S. 139(1) OF THE ACT. HE ALSO NOTED THAT THE EVIDENCE OF PAYMENT FILED BEFORE HIM AND ALLOWED THE CLAIM OF ASSESSEE. AGGRIEVED, NOW REVE NUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF CASE. WE FIND THAT LD. COUNSEL FOR THE ASSESSEE BEFORE US ST ATED THAT IT IS THE PRACTICE OF THE ASSESSEE TO PAY THE SALARY ON THE FIRST DAY OF NEXT MONTH AND P F & ESI IS DEDUCTED FROM SUCH PAYMENT WITHIN 15 DAYS FROM THE END OF THE MONTH WHEN DEDUC TIONS ON THE EMPLOYEES CONTRIBUTIONS WERE MADE AND THESE ARE PAID WITHIN THE DUE DATE OF FILING OF RETURN OF INCOME BY THE ASSESSEE COMPANY U/S. 139(1) OF THE ACT. WE FIND THAT HONB LE 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. 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. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 6. ORDER PRONOUNCED IN OPEN COURT ON 21.10.2011. SD/- SD/- . '# '#'# '# . ! , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( #! #! #! #!) )) ) DATED : 21ST OCTOBER, 2011 3 ITA 823/K/2010 M/S. TANTIA CONSTN. LTD.., A.Y.2006-07 /0 %12 3 JD.(SR.P.S.) . 4 ,5 6 5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT DCIT, CIRCLE-4, KOLKATA. 2 ,-*+ / RESPONDENT, M/S. TANTIA CONSTRUCTIONS LTD., 25 & 27, NETAJI SUBHAS ROAD, KOLKATA-700 001. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, .%@/ BY ORDER, 2 /ASSTT. REGISTRAR .