ACIT, Bangalore V. M/s Khoday India Ltd., Bangalore

ITA 899/BANG/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8558 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1992-1993
• Appeal Filed On: 04-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWATI S PATIL
• Section: 43B; 154

Judgement Text

PAGE 1 OF 4 ITA NOS.899 TO 903/B/09 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI GEORGE GEORGE K, J.M. AND SHRI A MOHAN ALANKAMONY, A.M ITA NOS.899 TO 903/BANG/2009 (ASSESSMENT YEARS 1992-93, 1995-96, 1996-97, 1997-98 & 1998-99) THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-11(5), BANGALORE. - APPELLANT VS M/S KHODAY INDIA LIMITED, NO.54, KANNYAKANA AGRAHARA, ANJANAPURA POST, BANGALORE-62. - RESPONDENT APPELLANT BY : SMT. SWATI S PATIL RESPONDENT BY : SHRI V SRIDHAR ORD ER PER BENCH : THESE APPEALS, FILED BY THE REVENUE, ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF LEARNED CIT(A)-I, BANGALORE DATED 22ND JUNE, 2009. THE ASST. YEARS CONCERNED AR E 1992-93, 1995-96 TO 1998-99 RESPECTIVELY. THE ORDER OF THE CIT(A) EMANATES FROM THE ORDERS OF THE ACIT, CIRCLE-11(5) DATED 25TH SEPTEMBER, 2008, PURPORTEDLY PASSED U/S 154 OF THE A CT. 2. SINCE COMMON ISSUES ARE INVOLVED IN THESE APPEA LS, THEY ARE HEARD AND DISPOSED OFF TOGETHER FOR THE SAK E OF CONVENIENCE AND BREVITY. PAGE 2 OF 4 ITA NOS.899 TO 903/B/09 2 3. BRIEFLY STATED THE FACTS ARE AS FOLLOWS:- PURSUANT TO ITAT'S ORDERS FOR THE ABOVE SAID ASSESSMENT YEARS, THE ASSESSING OFFICER REVISED THE ASSESSMENT TO GIVE EFFECT TO THE APPELLATE ORDERS OF THE HON'BLE TRIBUNAL. THE ORDERS GIVING EFFECT TO THE ITAT ORDER WERE PASSED ON VARIOUS DATES MENTIONED IN PARA 2 OF THE IMPUGNED CIT(A)'S ORDER. IT APPEARS THAT THE ASSESSING OFFICER, WHILE GIVING EF FECT TO ITAT ORDER, OMITTED TO DEAL WITH THE ISSUE RELATING TO D ISALLOWANCE OF DELAYED REMITTANCES OF EMPLOYER'S AND EMPLOYEES' CONTR IBUTION TO PF AND ESI MADE U/S 43B IN THE RESPECTIVE ASST. YEAR S. BY A LETTER DATED 21.5.2008, THE CONCERNED ASSESSING OFFICER WA S REQUESTED TO RECTIFY THE ORDER AND ALLOW DEDUCTION CLAIMED UND ER PF AND ESI OF AMOUNTS PAID BEFORE THE DUE DATE OF FILING RETUR N. 4. THE ASSESSING OFFICER VIDE ORDER DATED 25.9.200 8 HAD REJECTED THE APPLICATIONS ON THE GROUND THAT THERE WAS NO MISTAKE APPARENT FROM RECORD AND THAT THE ISSUE WAS DECIDED IN ACCORDANCE WITH LAW AS PREVALENT ON THAT DATE AND RELIED ON TH E DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF JAYASHREE TEA AND INDUSTRIES LTD. 288 ITR 386. 5. ON APPEAL, THE CIT(A) ALLOWED THE APPEALS OF TH E ASSESSEE RELYING ON THE DECISION OF JURISDICTIONAL H IGH COURT IN SABARI ENTERPRISES 298 ITR 141 AND THE DECISION OF HON'BLE PAGE 3 OF 4 ITA NOS.899 TO 903/B/09 3 SUPREME COURT IN THE CASE OF CIT V VINAY CEMENTS LTD . 213 CTR 268. 6. BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFOR E THE TRIBUNAL. 7. AT THE VERY OUTSET, IT WAS POINTED OUT BY THE L EARNED AR THAT THE ISSUE IN QUESTION IS COVERED BY THE JURI SDICTIONAL HIGH COURT IN THE CASE OF SABARI ENTERPRISES (SUPRA) IN FAVOUR OF THE ASSESSEE AND THE SAME HAS BEEN AFFIRMED BY THE HON'B LE SUPREME COURT IN THE CASE OF CIT V ALOM EXTRUSIONS LTD. 319 ITR 306. THE LEARNED AR ALSO SUBMITTED, ON IDENTICAL FACTS, IN A SSESSEE'S OWN CASE, THE HON'BLE TRIBUNAL IN ITA NO.88/BANG/2008 F OR THE ASST. YEAR 2000-01 DATED 31.3.2009 UPHELD THE ORDER OF THE CIT(A). 8. THE LEARNED DR FAIRLY SUBMITTED THAT THE SUBSTAN TIAL ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON' BLE SUPREME COURT CITED SUPRA IN FAVOUR OF THE ASSESSEE. 9. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. BOTH SIDES HAVE AGREED THE SUB STANTIAL ISSUE ON MERITS, IS COVERED IN FAVOUR OF ASSESSEE BY THE DECI SION OF THE HON'BLE SUPREME COURT CITED (SUPRA). IN THE LIGHT OF THE ABOVE SUBMISSION, WE HOLD THAT THE CIT(A) IS JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO QUANTIFY THE ACTUAL DEDUCTION ALLOWABLE U/S 43B IN RESPECT OF PF AND ESI REMITTANCES MADE BEFOR E THE STIPULATED DUE DATE FOR FILING THE RETURNS OF INCOM E AND ALLOW PAGE 4 OF 4 ITA NOS.899 TO 903/B/09 4 NECESSARY RELIEF FOR EACH OF THE ASST. YEAR IN QUESTI ON AFTER AFFORDING DUE OPPORTUNITY TO THE ASSESSEE. 10. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 12TH FEBRUARY, 2010 . SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED :12/2/2010 COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF 7. GF, ITAT, NEW DELHI. MSP/11/2/ BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.