DCIT, CHENNAI V. Tamilnadu Maritime Board, CHENNAI

MA 226/CHNY/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4015 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: G BASKAR
• Section: 37

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] M.P.NO.226/MDS/2015 [IN I.T.A.NO.862/MDS/2015] ASSESSMENT YEAR : 2010-11 THE DY. COMMISSIONER OF INCOME-TAX NON-CORPORATE CIRCLE-2 CHENNAI VS. TAMILNADU MARITIME BOARD NO.171, SOUTH KEASAVAPERUMALPURAM OFF. GREENWAYS ROAD RA PURAM, CHENNAI -28 [PAN AAATT 9514 E] ( PETITIONER ) ( -./0 /RESPONDENT) PETITIONER BY : SHRI P. RADHAKRISHNAN, JCIT RESPONDENT BY : SHRI G. BASKAR, ADVOCATE / DATE OF HEARING : 19 - 02 - 2016 / DATE OF PRONOUNCEMENT : 25 - 02 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THE REVENUE FILED THE PRESENT MISCELLANEOUS PETI TION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 21.8.2015. 2. SHRI P. RADHAKRISHNAN, LD. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT THE ASSESSEE MISREPRESENTED THE FAC TS BEFORE THIS TRIBUNAL BY PLACING RELIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT MP NO.226/15 :- 2 -: IN CIT VS KATTABOMMAN TRANSPORT CORPORATION LTD[200 4] 268 ITR 507. ACCORDING TO THE LD. DR, THE ASSESSEE BEFORE THIS TRIBUNAL CONTRIBUTED TO THE UNAPPROVED SUPERANNUATION FUND. HOWEVER, WH AT WAS CONTRIBUTED IN THE CASE BEFORE THE HIGH COURT IN KA TTABOMMAN TRANSPORT CORPORATION LTD (SUPRA) IS TO THE PROVIDE NT FUND, THEREFORE, THE FACTS ARE DISTINGUISHABLE. SIMILARLY, IN THE C ASE OF KATTABOMMAN TRANSPORT CORPORATION LTD(SUPRA), THE REMITTANCE WA S MADE TO THE GOVERNMENT ACCOUNT. IN THE CASE OF THE ASSESSEE, ACCORDING TO THE LD. DR, THE ASSESSEE ITSELF RETAINED THE FUNDS. I N THE CASE OF KATTABOMMAN TRANSPORT CORPORATION LTD(SUPRA), THE E MPLOYEES WERE SENT ON DEPUTATION BY THE STATE GOVERNMENT. HOWEVE R, IN THE PRESENT CASE, THE EMPLOYEES WERE TAKEN ON ABSORPTION. REFE RRING TO PARA 5 OF THE PETITION, THE LD. DR SUBMITTED THAT THE JUDGMEN T OF THE MADRAS HIGH COURT IN KATTABOMMAN TRANSPORT CORPORATION LTD (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. AT TH E BEST, THE CLAIM COULD BE ALLOWED IN RESPECT OF THE CONTRIBUTION MAD E BY THE ASSESSEE IN RESPECT OF 50 EMPLOYEES. ON A QUERY FROM THE BE NCH WHAT IS THE BASIS FOR ALLOWING CONTRIBUTION IN RESPECT OF 50 EM PLOYEES, THE LD. DR COULD NOT CLARIFY THE SAME. 3. ON THE CONTRARY, SHRI G. BASKAR, LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT PLACING RELIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF KATTABOMMAN TRANSPORT CORPORAT ION LTD(SUPRA) MP NO.226/15 :- 3 -: CANNOT BE CONSTRUED AS MISREPRESENTING THE FACTS BE FORE THIS TRIBUNAL. REFERRING TO THE GOVERNMENT ORDER GIVING OPTION TO THE EMPLOYEES OF THE ERSTWHILE TAMILNADU PORT DEPARTMENT TO WORK UND ER THE TAMILNADU MARITIME BOARD ( ASSESSEE), THE LD. COUNSEL SUBMITT ED THAT THE ASSESSEE BOARD IS ALSO LIKE KATTABOMMAN TRANSPORT C ORPORATION LTD(SUPRA), THEREFORE, THERE IS NO QUESTION OF ANY MISREPRESENTATION OF THE FACTS. THE GOVERNMENT EMPLOYEES OF THE STATE G OVERNMENT WHO WORKED AT THE PORT DEPARTMENT WERE ALLOTTED TO THE ASSESSEE ON THE SAME TERMS AND CONDITIONS AND RIGHTS. THEREFORE, W HATEVER CONTRIBUTION MADE BY THE ASSESSEE HAS TO BE ALLOW ED EITHER IN TERMS OF SEC. 36(1)(IV) OR 36(1)(V) OF THE ACT OR ATLEAST U/S 37 OF THE ACT. THIS IS WHAT THE TRIBUNAL HAS DONE AFTER PLACING RE LIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT IN KATTABOMMAN TR ANSPORT CORPORATION LTD(SUPRA). THEREFORE, THERE IS NO QUE STION OF ANY MISREPRESENTATION OF FACTS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADM ITTEDLY, THE ASSESSEE WAS ESTABLISHED BY THE STATE GOVERNMENT. BY A GOVERNMENT ORDER, THE STATE GOVERNMENT GAVE OPTION TO THE EMPL OYEES OF THE ERSTWHILE PORT DEPARTMENT TO WORK UNDER THE ASSESS EE-BOARD. THE GOVERNMENT CATEGORICALLY CLARIFIED THAT THE EMPLOYE ES WHO OPTED TO WORK UNDER THE ASSESSEE-BOARD WOULD HAVE THE SAME TENURE, MP NO.226/15 :- 4 -: REMUNERATION, RIGHTS AND PRIVILEGES AS TO PENSION A ND GRATUITY. THEREFORE, THE GOVERNMENT EMPLOYEES WHO WERE TRANSF ERRED TO THE ASSESSEE-BOARD WILL HAVE THE SAME RIGHTS AND PRIVIL EGES IN RESPECT OF SUPERANNUATION AND PENSION. IN THOSE CIRCUMSTANCES , THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS NO NEED FOR DISTINGUISHING THE FACTS AS IT WAS DONE BY THE ASSESSING OFFICER. THE CONTRIBUTION MADE BY THE ASSESSEE TO THE SUPERANNUATION FUND HAS TO BE ALLOWED ATLEAST U/S 37 OF THE ACT AS FOUND BY THE MADRAS HIGH COURT IN KATTABOMMAN TRANSPORT CORPORATION LTD(SUPRA). ABSORPTION OF TH E GOVERNMENT EMPLOYEES BY THE ASSESSEE-BOARD WILL NOT MAKE ANY DISTINCTION IN RESPECT OF PAYMENT FOR SUPERANNUATION FUND. THEREF ORE, THIS TRIBUNAL DO NOT FIND ANY ERROR IN THE ORDER DATED 21.8.2015 MUCH LESS A PRIMA FACIE ERROR. THEREFORE, THERE IS NO MERIT AT ALL I N THE MISCELLANEOUS PETITION FILED BY THE REVENUE. ACCORDINGLY, THE SA ME IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH FEBRUARY, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ) ) (N.R.S. GANESAN) / JUDICIAL MEMBER / CHENNAI / DATED: 25 TH FEBRUARY, 2016 MP NO.226/15 :- 5 -: RD !' / COPY TO: 1 . PETITIONER 4. # # $ / CIT 2. %#&' / RESPONDENT 5. ()*# +, / DR 3. # # $ (! *) / CIT(A) 6. )./ 0 / GF