FOURSESS ENGG (INDIA) LTD, V. ITO 5(1)(4),

MA 144/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0041 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Assessee Lawyers: DR K SHIVARAM
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH,B MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER MA NO: 144/MUM/2012 ARISING OUT OF : ITA NO.3786/MUM/2003 ASSESSMENT YEAR : 1999-2000 M/S. FOURESS ENGG (INDIA) LTD. MAHALAXMI CHAMBERS BHULABHAI DESAI ROAD MUMBAI-400 026 PAN NO.: AAAPF 0026 F INCOME TAX OFFICER WARD 5(1)(4) MUMBAI-400 020. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : DR. K. SHIVARAM RESPONDENT BY : SHRI D.K. SINHA DATE OF HEARING : 15.2.2013 DATE OF PRONOUNCEMENT : 15.2.2013 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR AMENDMENT OF ORDER DATED 23.9.2008 O F THE TRIBUNAL IN RELATION TO GROUND NO.2 WHICH RELATED TO DISALLOWAN CE OF CONTRIBUTION TO PF AND ESIC UNDER SECTION 43B OF THE ACT. 2. THE AUTHORITIES BELOW HAD DISALLOWED THE CLAIM O N THE GROUND THAT THE CONTRIBUTION HAD NOT BEEN MADE WITHIN DUE DATE AS PER THE RELEVANT STATUTE. THE ASSESSEE ARGUED BEFORE THE TR IBUNAL THAT THE CLAIM SHOULD BE ALLOWED IN VIEW OF THE AMENDMENT TO SECTION 43B OF THE INCOME TAX ACT AS PER WHICH CONTRIBUTIONS MADE EVEN BEFORE DUE MA NO.144/MUM/12 ARISING OUT OF ITA N O. 3786/M/03 A.Y: 99-00 2 DATE OF FILING OF RETURN OF INCOME HAVE TO BE ALLOW ED AS DEDUCTION. THE TRIBUNAL HOWEVER REFERRED TO THE JUDGMENT OF THE HO N'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. PAMWI TISSUES LTD. (313 ITR 137) IN WHICH IT WAS HELD THAT AMENDMENT TO SECTION 43B WAS PROSPECTIVE IN NATURE APPLICABLE FROM ASSESSMENT YEAR 2004-05. THE TRIBUNAL THEREFORE, HELD THAT THE CLAIM HAD BEEN RIGHTLY DIS ALLOWED BY AUTHORITIES BELOW AS ASSESSMENT YEAR INVOLVED WAS 1 999-00. THE ASSESSEE IN THE MISCELLANEOUS APPLICATION HAS POINT ED OUT THAT IN THE SUBSEQUENT DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. (319 ITR 306), IT HAS BEEN HELD THAT AMENDMENT TO SECTION 43B BY THE FINANCE ACT 2003 IS RETROSPECTIVE IN NATURE APPLICABLE FROM 1988-89. IT HAS THEREFORE BE EN REQUESTED THAT THE ORDER MAY BE AMENDED FOLLOWING THE JUDGMENT OF HON'BLE SUPREME COURT MENTIONED ABOVE. 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT SUBSE QUENT JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT AND H ON'BLE SUPREME COURT CONSTITUTE A MISTAKE APPARENT FROM RECORD AND THEREFORE BASED ON SUCH SUBSEQUENT JUDGMENTS, THE ORDER COULD BE RE CTIFIED. HE REFERRED TO THE JUDGMENT OF HON'BLE SUPREME COURT I N THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK (305 ITR 227) IN WHICH T HE HON'BLE SUPREME COURT HELD THAT A JUDICIAL DECISION ACTED R ETROSPECTIVELY AS JUDGES DO NOT MAKE LAW BUT ONLY DISCOVER OR FIND TH E CORRECT LAW. HE ALSO REFERRED TO THE DECISION OF THE TRIBUNAL AND F ULL BENCH JUDGMENT OF THE HON'BLE HIGH COURT OF PUNJAB & HARYANA AS ME NTIONED BELOW IN SUPPORT OF THE PLEA. I) 252 ITR 76 (P&H)(FB) IN THE CASE OF CIT VS. SMT. AR UNA LUTHRA II) 5 ITR 258 (TRIB.) IN THE CASE OF V.R. CHITTANANDAM VS. ACIT MA NO.144/MUM/12 ARISING OUT OF ITA N O. 3786/M/03 A.Y: 99-00 3 III) 121 TTJ 946 (MUM.) IN THE CASE OF GANGES LINES (IN DIA) (P) LTD. VS. DCIT 3.1 THE LD. DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL AND RAISED NO SERIOUS OBJECTION TO THE PLEA FOR RECTIFICATION. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTE RAISED BEFORE THE TRIBUNAL W AS ALLOWABILITY OF CONTRIBUTION ON ACCOUNT OF PF AND ESIC MADE AFTER DU E DATE BUT BEFORE DUE DATE OF FILING OF RETURN OF INCOME. THE FINANCE ACT 2003 HAD AMENDED THE PROVISIONS OF SECTION 43B AS PER WH ICH THE CONTRIBUTIONS TO PF AND ESIC MADE AFTER DUE DATE BUT BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME HAS TO BE ALLOWE D AS DEDUCTION. THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. PAMWI TISSUES (313 ITR 137)(SUPRA), HAD TAKEN THE VIEW THAT AMEND MENT BY FINANCE ACT 2003 WAS PROSPECTIVE IN NATURE APPLICABLE FROM 2004-05. HOWEVER THE HON'BLE SUPREME COURT IN CASE OF ALOM EXTRUSIONS LTD. (SUPRA), HAVE REVERSED THE SAID JUDGMENT OF THE HONBLE HIGH COURT AND HELD THAT AMENDMENT WAS RETROSPECTIVE IN NATURE APPLICAB LE FROM 1.4.1988. THE TRIBUNAL HAD DECIDED THE ISSUE FOLLOWING THE JU DGMENT OF HON'BLE JURISDICTIONAL HIGH COURT WHICH HAS NOW BEEN REVERS ED. THOUGH THE JUDGMENT OF HON'BLE SUPREME COURT REVERSING JUDGMEN T OF HIGH COURT WAS NOT AVAILABLE AT THE TIME OF PASSING OF THE ORD ER BY THE TRIBUNAL, SUBSEQUENT JUDGMENTS OF HON'BLE JURISDICTIONAL HIGH COURT AND HON'BLE SUPREME COURT CAN BE MADE THE BASIS FOR RECTIFICATI ON OF AN ORDER PASSED EARLIER. THIS VIEW IS SUPPORTED BY SEVERAL D ECISIONS OF THE TRIBUNAL AND THE JUDGMENT OF HON'BLE HIGH COURT PF PUNJAB & HARYANA AS MENTIONED EARLIER. WE, THEREFORE AMEND THE ORDER OF THE TRIBUNAL IN RELATION TO GROUND NO.2 IN PARA-9 AND SET ASIDE THE ISSUE TO THE FILE OF MA NO.144/MUM/12 ARISING OUT OF ITA N O. 3786/M/03 A.Y: 99-00 4 THE AO FOR PASSING A FRESH ORDER IN THE LIGHT OF TH E JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD. (S UPRA). 5. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.02.2013. SD/- SD/- (SANJAY GARG) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI, DATED: 15.02.2013. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.