ACIT, CHENNAI V. S.M.Apparels Pvt. Ltd., CHENNAI

MA 150/CHNY/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1076 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-11-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 06-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI
• Keywords: Retrospective amendment
• Section: 43B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI S.S. GODARA, JUDICIAL MEMBER M.P. NO.150/MDS/2013 (IN ITA NO.2119/MDS/2011) (ASSESSME NT YEAR : 2003-04) THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(4), CHENNAI VS. M/S.S.M. APPARELS P. LTD, NO.45A, VELACHERRY MAIN ROAD, VELACHERY, CHENNAI 600 042. (PAN NO.AAFCS2097B) (APPLICAN T) (RESPOND ENT) APPLICANT BY : MR. T.N. BETGERI, JCIT RESPONDENT BY : MR. S AROJ KUMAR PARIDA, ADV DATE OF HEARING : 08 TH NOVEMBER, 2013. DATE OF PRONOUNCEMENT : 08 TH NOVEMBER, 2013. O R D E R PER S.S. GODARA, JUDICIAL MEMBER THE PRESENT MISCELLANEOUS PETITION HAS BEEN FILED A T THE INSTANT OF REVENUE SEEKING TO RECTIFY OUR ORDER DAT ED 05.04.2013 DISMISSING ITS APPEAL. 02. THE SOLE SUBSTANTIVE GROUND AS RAISED BY THE R EVENUE IS THAT WHILE REJECTING ITS CONTENTIONS, THE BENCH DID NOT TAKE INTO CONSIDERATION THE RELEVANT STATUTORY PROVISION I. E SECTION 43B OF M.P.NO. 150/MD S/2013 (IN ITA NO.2119/MDS/ 2011) 2 THE ACT WHICH IS APPLICABLE WITH EFFECT FROM 01.04 .2004 AND NOT FOR IMPUGNED ASSESSMENT YEAR 2003-2004. 03. IN THE COURSE OF HEARING, THE REVENUE HAS ARGUE D ITS AFORESAID GROUND. THE ASSESSEE HAS QUOTED CASE LAW (2009) 319 ITR 306(SC) CIT VS. ALTOM EXTRUSIONS LTD AND SUBM ITTED THAT THE ISSUE IS NO MORE RES INTEGRA. 04. WE HAVE HEARD BOTH PARTIES AND PERUSED THE CASE FILE. IT IS EVIDENT TO US THAT THE ASSESSING OFFICER AND THE CI T(A) HAD MADE DISALLOWANCE UNDER SECTION 43B OF THE ACT TOWARDS E MPLOYERS CONTRIBUTION TO THE PF/ESI BY INVOKING SECTION 2(24 )(X) R.W.S.36(1) OF THE ACT. THE MATTER REACHED TRIBUNAL, WHEREIN THE CO-ORDINATE BENCH VIDE ORDER DATED 04.07.2008 HELD THAT THE ASS ESSEE WAS ENTITLED TO RELIEF UNDER SECTION 43B OF THE ACT. IN CONSEQUENTIAL PROCEEDINGS, THE ASSESSING OFFICER AGAIN DISALLOWED THE AMOUNT. THE ASSESSEE FILED A PETITION UNDER SECTION 154 OF THE ACT WHICH WAS DECLINED. THE CIT(A); RELYING ON EARLIER ORDER OF THE TRIBUNAL, DECIDED THE ISSUE IN ASSESSEES FAVOUR. IN REVENUES APPEAL, WE HAVE PLACED RELIANCE ON CASE LAW OF DELH I HIGH COURT M.P.NO. 150/MD S/2013 (IN ITA NO.2119/MDS/ 2011) 3 (2010) 321 ITR 508(DELHI) CIT VS AIMIL LTD AND HELD THAT RELEVANT STATUTORY PROVISION UNDER SECTION 43B APPL IES IN THE INSTANT CASE. THEREFORE, THE REVENUE HAS FILED T HE PRESENT PETITION. 05. AFTER GIVING OUR THOUGHTFUL CONSIDERATION, WE F IND THAT THE ONLY GROUND ADVANCED BY THE REVENUE IS WHETHER RELE VANT STATUTORY PROVISION UNDER SECTION 43B OF THE ACT IS RETROSPECTIVE IN NATURE OR APPLIES WITH EFFECT FROM 01.04.2004 ONLY. WE NOTICE THAT HONBLE SUPREME COURT IN THE CASE LAW OF ALOM EXTRU SIONS (SUPRA) HAS ALREADY DECIDED THE VERY QUESTION AGAINST THE R EVENUE HOLDING THE PROVISION TO HAVE RETROSPECTIVE EFFECT. SO, TH ERE IS NO MERIT IN THE PETITION. 06. IN THE RESULT, THE MISCELLANEOUS PETITION IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON FRIDAY, THE 8 TH OF NOVEMBER, 2013 AT CHENNAI. SD/- SD/- ( DR. O.K.NARAYANAN) (S.S. GODARA ) VICE-PRESIDENT JUDICIAL MEMBER CHENNAI. DATED THE 08 TH NOVEMBER, 2013. KV COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR