ACIT, Circle-33, Kolkata, Kolkata V. Hasibul Hossain, Kolkata

ITA 853/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6165 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 26-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: H V BHARDWAJ
• Keywords: Question of law

Judgement Text

PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA BEFORE SH. WASEEM AHMED, ACCOUNTANT MEMBER AND SH. S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.85 3 /KOL/2017 [ASSESSMENT YEAR: 2013 - 14] APPELLANT BY SH. A.BHATTACHARJEE, ADDL. CIT RESPONDENT BY SH. H.V.BHARDWAJ, FCA DATE OF HEARING 02.05.2018 DATE OF PRONOUNCEMENT 1 8 . 07.2018 ORDER PER S.S . VISWANETHRA RAVI , JUDICIAL MEMBER THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 28.02.2017 PASSED BY CIT(A) - 9, KOLKATA FOR AY 2013 - 14. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER CIT(A) JUSTIFIED DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF NON - PAYMENT OF EMPLOYEES CONTRIBUTIONS TO THE WELFARE FUND. 3. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS NOTICED THAT THE AO DISALLOWED AN AMOUNT OF RS.74, 03,362/ - WHICH IS A RECEIPT FROM EMPLOYEES TOWARDS THEIR CONTRIBUTIONS TO WELFARE FUND AND FOR NOT DEPOSITING THE SAME WITHIN DUE DATE AS PER PROVISIONS U/S 36(I)(VA) OF THE INCOME T AX ACT, 1961 (IN SHORT ACT) AND ADDED TO THE TOTAL INCOME OF THE ASSESS EE. 4. THE CIT(A) DELETED THE SAME BY PLACING RELIANCE IN THE DECISION OF HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF CIT VS M/S VIJAY SHREE LTD. IN ITAT NO.245 OF ACIT, CIRCLE - 33, KOLKATA. VS HASIBUL HOSSAIN, UDITA COMPLEX, 1050/1, SURVEY PARK, UD - 04/0304, SANTOSHPUR, 24 - PGS, PS:PURVO JADAVPUR, KOLKATA - 7000 75 . PAN - A BJPH3476P (APPELLANT) (RESPONDENT) ITA NO. 8 53 / KOL/201 7 [ASSESSMENT YEAR: 20 13 - 14 ] PAGE | 2 2011 VIDE ORDER DATED 06.09.2011 WHEREIN IT HELD THE FINDING OF ITAT, KOLKATA BENCH IS J USTIFIED IN ALLOWING THE DEDUCTION TO THE ASSESSEE THEREIN EVEN IF THE CREDIT IS MADE TO EMPLOYEES ACCOUNTS BEYOND DUE DATE BUT BEFORE THE DUE DATE FILING THE RETURN OF INCOME. THE RELEVANT PORTION OF THE DECISION OF HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF M/S VIJAY SHREE LTD. (SUPRA) IS REPRODUCED HEREUNDER BELOW: - I T APPEARS THAT THE TRIBUNAL BELOW IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS ALOM EXTR U SION LTD. REPORTED IN 2009 VOL. 390 ITR 306, HELD THAT THE DELETION WAS JUSTIFIED. BEING DISSATISFIED, THE REVENUE HAS COME UP WITH THE PRESENT APPEAL. AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARING ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS AL OM EXTRUSION LTD., WE FIND THAT T HE SUPREME COURT IN THE AFORESAID CASE HAS HELD THAT THE AMENDMENT TO THE SECOND PROVISO TO THE SEC 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATIVE IN NATURE A ND 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 AFORESAID AMENDED PROVISIONS OF SECTION 43( B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSE QUENTLY, WE DISMISS THE APPEAL. 5 . IT IS NOTED FROM THE PERUSAL OF THE IMPUGNED ORDER , THAT CIT(A) FOUND SATISFIED THAT THE ASSESSEE DEPOSITED EMPLOYEES CONTRIBUTION BEFORE DUE DATE OF FILING OF RETURN OF INCOME. THEREFORE, WE FIND NO INFIRMITY IN THE OR D ER OF CIT(A) AND IS JUSTIFIED. GROUND NO S . 1 TO 3 RAISED IN THIS REGARD BY THE REVENU E ARE DISMISSED. ITA NO. 8 53 / KOL/201 7 [ASSESSMENT YEAR: 20 13 - 14 ] PAGE | 3 6 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT O N 1 8 . 0 7 . 2 0 1 8 . S D / - S D / - (WASEEM AHMED) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: - 1 8 .07.2018 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT - AC IT, CIRCLE - 33, KOLKATA. 2. RESPONDENT - HASIBUL HOSSAIN, UDITA COMPLEX, 1050/1, SURVEY PARK, UD - 04/0304, SANTOSHPUR, 24 - PGS, PS - PURVO JADAVPUR, KOLKATA - 700075. 3. CIT - KOLKATA 4. CIT(APPEALS) - KOLKATA 5. DR: ITAT - KOLKATA BENCH SR.P.S./H.O.O ITAT, KOLKATA