JMC Projects (India) Ltd., Ahmedabad V. The ACIT., Circle-4, Ahmedabad

MA 1/AHD/2010

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9769 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-12-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 06-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR SRDR
• Assessee Lawyers: M K PATEL
• Section: 43B

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD , .. !'#, $ BEFORE SHRI MAKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.K.GARODIA, ACCOUNTANT MEMBER %% & (MISC. APPLICATION) NO.1/AHD/2010 (A/O ITA NO.2422 & 2644/AHD/2006) & ' (' / ASSESSMENT YEAR:2002-03 M/S JMC PROJECTS (INDIA) LTD. 11 TH LEVEL, JMC HOUSE, OPP. PARIMAL GARDEN, AHMEDABAD [ PAN NO.AAACJ 3814E ] & & & & / V/S . ADDL. COMMISSIONER OF INCOME TAX, CIRCLE-4, AHMEDABAD (ORIGINAL APPELLANT) (ORIGINA L RESPONDENT) (APPELLANT) .. (RESPONDENT) *+ , - /BY APPELLANT SHRI M.K. PATEL, AR ./*+ , - / BY RESPONDENT SHRI T. SANKAR, SR-DR &0 , 1$ /DATE OF HEARING 21-12-2012 2!( , 1$ /DATE OF PRONOUNCEMENT 04-01-2013 3 3 3 3 / // / ORDER .. !'#, $ /PER A.K.GARODIA, ACCOUNTANT MEMBER:- THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY TH E ASSESSEE POINTING OUT CERTAIN MISTAKES IN THE IMPUGNED TRIBUNAL ORDER . MA NO.1/AHD/2010 (A/O ITA NO.2422 & 2644/AHD/2006) M/S JMC PROJECTS (I) LTD. V. ADDL. CIT, CIR-4, AB D PAGE 2 2. IT IS THE SUBMISSION OF THE ASSESSEE IN MA AND I T WAS ALSO THE SUBMISSION OF LD. AR OF THE ASSESSEE IN COURSE OF H EARING OF MA BEFORE US THAT THERE WAS A COMBINED TRIBUNAL ORDER IN RESPECT OF ASSESSEES APPEAL AND ALSO REVENUES APPEAL FOR ASSESSMENT YEAR 2002-03 I N ITA NO. 2422 AND 2644/AHD/2006 DATED 12-01-2007. IT WAS ALSO SUBMITT ED THAT IN ASSESSEES APPEAL, ONE OF THE GROUND WAS REGARDING CONFIRMING OF DISALLOWANCE OF RS.13,91,301/- BEING EMPLOYERS CONTRIBUTION OF PF ALTHOUGH THE SAME WAS PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INC OME U/S.139(1) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). HE ALSO SUBMITTED THAT ONLY ISSUE RAISED BY THE REVENUE IN ITS APPEAL WAS THAT LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.11,58,256/- ON ACCO UNT OF LATE PAYMENT OF EMPLOYERS PF CONTRIBUTION. HE FURTHER SUBMITTED TH AT AS PER THE IMPUGNED TRIBUNAL ORDER, THE APPEAL OF THE ASSESSEE WAS DISM ISSED AND APPEAL OF REVENUE WAS ALLOWED BY FOLLOWING THE VARIOUS JUDGME NTS WHICH WERE AVAILABLE AT THAT POINT OF TIME OF VARIOUS COURTS. IT IS FURTHER SUBMITTED THAT SUBSEQUENTLY, AS PER THE JUDGMENT OF HONBLE SUPREM E COURT RENDERED IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. (2009) AS REPORTED IN 319 ITR 306 (SC), DEDUCTION IS ALLOWABLE IN RESPECT OF EMPLOYERS CON TRIBUTION AS WELL AS EMPLOYEES CONTRIBUTION IN RESPECT OF PF, IF THE PA YMENT OF SAME IS MADE BEFORE DUE DATE OF FILING RETURN OF INCOME. IT WAS ALSO SUBMITTED THAT AS PER THE TRIBUNALS DECISION IN MA IN THE CASE OF M/S. INDUCTOTHERM (INDIA) PVT. LTD. V. ACIT IN MA NO. 80/AHD/2010 DATED 20-04-2012, IT WAS HELD THAT EVEN IF THE IMPUGNED TRIBUNAL ORDER IS NOT IN LINE WITH SUBSEQU ENT JUDGMENT OF HONBLE SUPREME COURT, THERE IS AN APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER, WHICH SHOULD BE RECTIFIED U/S. 254(2) OF THE ACT. H E SUBMITTED THAT ON THE SAME LINE, IN THE PRESENT CASE ALSO, THE IMPUGNED TRIBUN AL ORDER IS NOT IN LINE WITH THE SUBSEQUENT JUDGMENT OF HONBLE SUPREME COURT RE NDERED IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA) AND HENCE, SAME SHOULD BE RECTIFIED. AT TH IS JUNCTURE, A QUERY WAS RAISED BY THE BENCH AS TO WHE THER THE ASSESSEE HAS FILED ONE MA ONLY IN RESPECT OF TRIBUNALS ORDER IN ASSESSEES APPEAL OR MA NO.1/AHD/2010 (A/O ITA NO.2422 & 2644/AHD/2006) M/S JMC PROJECTS (I) LTD. V. ADDL. CIT, CIR-4, AB D PAGE 3 WHETHER THE ASSESSEE HAS FILED TWO MAS FOR ASSESSEE S APPEAL AND REVENUES APPEAL SEPARATELY. 3. IN REPLY, IT WAS SUBMITTED BY LD. AR OF THE ASSE SSEE THAT ONLY ONE MA HAS BEEN FILED BY THE ASSESSEE IN RESPECT OF IMPUGN ED TRIBUNAL ORDER IN ASSESSEES APPEAL AND SINCE MORE THAN FOUR YEARS HA VE ELAPSED, AFTER THE DATE OF THE TRIBUNAL ORDER, THE ASSESSEE CANNOT FIL E A MA IN RESPECT OF IMPUGNED TRIBUNAL ORDER FOR REVENUES APPEAL LD. SR -DR SUBMITTED THAT TRIBUNAL ORDER IS AS PER VARIOUS JUDGMENTS OF DIFFE RENT HIGH COURTS, WHICH WERE AVAILABLE AT THAT POINT OF TIME AND HENCE, THE RE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT AS PER JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE C ASE OF ACIT V. SAURASHTRA KUCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC) AND ALSO AS PER THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COU RT RENDERED IN THE CASE OF SUHRID GEIGY LTD. V. COMMISSIONER OF SURTEX (1999) AS REPORTED IN 237 ITR 834 (GUJ), IT WAS HELD THAT IF A POINT IS COVERED B Y A DECISION OF JURISDICTIONAL HIGH COURT RENDERED PRIOR OR EVEN SUBSEQUENT TO THE ORDER OF RECTIFICATION, IT COULD BE SAID TO BE MISTAKE APPARENT FROM THE RECOR D U/S. 254(2) OF THE ACT AND COULD BE CORRECTED BY THE TRIBUNAL. THIS DECISI ON OF HONBLE JURISDICTIONAL HIGH COURT WAS NOTED BY HONBLE SUPREME COURT IN PA RA-41 OF ITS JUDGMENT. HE SUBMITTED THAT AS PER THESE TWO JUDGMENTS CITED BY HIM, IN THE PRESENT CASE, IT SHOULD BE HELD THAT THERE IS APPARENT MIST AKE IN THE IMPUGNED TRIBUNAL ORDER AND SAME SHOULD BE RECTIFIED. 5. AS AGAINST THIS, IT WAS SUBMITTED BY LD. DR OF T HE REVENUE THAT SINCE THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE O F ALOM EXTRUSIONS LTD. MA NO.1/AHD/2010 (A/O ITA NO.2422 & 2644/AHD/2006) M/S JMC PROJECTS (I) LTD. V. ADDL. CIT, CIR-4, AB D PAGE 4 (SUPRA) IS OF SUBSEQUENT DATE, THERE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THIS ISSUE IS NOW COVERED IN FAVOUR OF ASSESSEE BY THE SUBSEQUENT JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). IN THIS JUDGMENT, IT WAS HELD BY HONBLE SUPREME COURT THAT IF THE PAYMENT OF PF CONTRIBUTION OF EMPLOYER OR EMPLOYEE IS PAID BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME, THE SAID IS ALL OWABLE U/S. 43B OF THE ACT. IN THE PRESENT CASE, THE PAYMENT OF EMPLOYERS CONTRIBU TION OF PF OF RS.13,91,301/- WAS MADE BY THE ASSESSEE ON 21-09-20 01, 21-12-2001 AND 24-04-2002 AS HAVE BEEN NOTED BY THE TRIBUNAL AT PA GE-2 OF THE TRIBUNAL ORDER. HENCE, IT IS SEEN THAT ENTIRE PAYMENTS WERE MADE BY THE ASSESSEE BEFORE DUE DATE OF FILING OF RETURN OF INCOME. WE H AVE SEEN THAT AS PER THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDE RED IN THE CASE OF SUHRID GEIGY LTD. (SUPRA), IF THE TRIBUNALS DECISION IS NOT IN LINE WITH EVEN A SUBSEQUENT DECISION OF HONBLE JURISDICTIONAL HIGH COURT, THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER WHICH SHOULD BE RECTI FIED U/S. 254(2) OF THE ACT. 7. RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT, WE HOLD THAT THERE IS AN APPARENT MISTAKE IN THE IM PUGNED TRIBUNAL ORDER BECAUSE THE SAME IS NOT IN LINE WITH THE SUBSEQUENT JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). WE, THEREFORE, RECTIFY THIS APPARENT MISTAKE IN THE IMP UGNED TRIBUNAL ORDER IN RESPECT OF ASSESSEES APPEAL IN ITA NO.2422/AHD/200 6, WHEREBY THE TRIBUNAL HAS CONFIRMED THE DISALLOWANCE OF RS.13,91,301/- RE GARDING EMPLOYEES CONTRIBUTION OF PF FUND AS PER THIS, IMPUGNED TRIBU NAL ORDER ITSELF THE DATE OF PAYMENT OF EMPLOYEES CONTRIBUTION OF PF ARE NOTED A ND SAME ARE WITHIN THE PERIOD BEFORE THE DUE DATE OF FILING OF RETURN OF I NCOME. HENCE, THIS DISALLOWANCE IS NOT SUSTAINABLE AS PER THE SUBSEQUE NT DECISION OF HONBLE MA NO.1/AHD/2010 (A/O ITA NO.2422 & 2644/AHD/2006) M/S JMC PROJECTS (I) LTD. V. ADDL. CIT, CIR-4, AB D PAGE 5 SUPREME COURT RENDERED IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE SUPR EME COURT, WE DELETE THIS DISALLOWANCE. GROUND NO.1 OF ASSESSEES APPEAL STAN DS ALLOWED. 8. IN THE RESULT, MA OF THE ASSESSEE STANDS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- ( ) ($ ) (MUKUL KR. SHRAWAT) (A.K.GAR ODIA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, *DKP '&6- 04/01/2013 3 3 3 3 , ,, , .% .% .% .% =%( =%( =%( =%( / COPY OF ORDER FORWARDED TO:- 1. *+ / APPELLANT 2. ./*+ / RESPONDENT 3. > / CONCERNED CIT 4. >- / CIT (A) 5. %@ .& , , / DR, ITAT, AHMEDABAD 6. #' BC / GUARD FILE. BY ORDER/ 3 , /TRUE COPY/ D/ E , STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 21/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 21/12, 24/12 4) DATE OF CORRECTION 31/12 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 02/01 7) ORDER UPLOADED ON 04/01 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 04/01