SANGHAVI JEWELLERY MFG. CO.P. LTD, V. ITO 8(3)-1,

MA 260/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7034 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2000-2001
• Appeal Filed On: 04-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Assessee Lawyers: B V JHAVERI
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AN D SHRI R.S. PADVEKAR, JUDICIAL MEMBER M.A. NO.260/MUM./2011 (ARISING OUT OF ITA NO. 4707/MUM./2007 ) (ASSESSMENT YEAR : 2000-01 ) M/S. SANGHAVI JEWELLERY MFG. CO. P. LTD. G-41, GEM & JEWELLERY, COMPLEX-III SEEPZ, ANDHERI (E), MUMBAI 400 096 PAN AAACS7836B .. APPLICANT V/S INCOME TAX OFFICER WARD-8(3)(1), MUMBAI .... RESPONDENT ASSESSEE BY : MR. B.V. JHAVERI REVENUE BY : MR. SHANTAM BOSE DATE OF HEARING 26.8.2011 DATE OF ORDER 16.09.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE SEEKS RECTIFICATION OF THE IMPUGNED ORDER DATED 5 TH OCTOBER 2009, PASSED IN ITA NO.4707/MUM./2007, ON THE GROUND THAT THE TRIBUNAL, AT PARA-6 OF THE IMPUGNED ORDER, HAD FOLLOWED THE JUDGMENTS OF HON'B LE JURISDICTIONAL HIGH COURT IN CIT V/S GODAVERI (MANNAR) SAHAKARISAKHAR K ARKHANA LTD. (2008) 298 ITR 149 (BOM.) AND CIT V/S PAMWI TISSUES LTD. ( 2009) 313 ITR 137 (BOM.), AND WHEREAS, SUBSEQUENTLY, THE HON'BLE SUPR EME COURT IN CIT V/S M/S. SANGHAVI JEWELLERY MFG. CO. P. LTD. MA NO.260/MUM./2011 2 ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (BOM.), HAD REVERSED THESE JUDGMENTS. 2. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, AGREED WITH THE CONTENTIONS OF THE ASSESSEE THAT THE SUBSEQUENT JUDGMENT OF THE HON'BLE SUPREME COURT HAS TO BE FOLLOWED AND NOT FOLLOWING THE SAME, WOULD AMOUNT TO A MISTAKE APPARENT ON RECORD. 3. AFTER HEARING BOTH THE PARTIES, WE HOLD THAT THERE IS A MISTAKE APPARENT ON RECORD IN PARA-6 OF THE IMPUGNED ORDER OF THE TRIBUNAL. WE, ACCORDINGLY, RECTIFY THE SAME BY APPLYING THE JUDGM ENT OF HON'BLE SUPREME COURT IN ALOM EXTRUSIONS LTD. (SUPRA). THIS BENCH O F THE TRIBUNAL HAD CONSIDERED DECISION IN M/S. PIK PEN PVT. LTD. V/S I TO, ITA NO.6847/MUM./ 2008, VIDE ORDER DATED 28 TH JANUARY 2010. PARA-10 OF THIS DECISION IS EXTRACTED BELOW:- 10. THE NEXT ISSUE IS DISALLOWANCE OF EMPLOYEES CO NTRIBUTION TO PF AND ESIC OF RS. 43,721/-. THE SHORT CONTROVERSY BEFORE US IS IN RESPECT OF THE PAYMENT OF THE EMPLOYEES CONTRIBUTION TO P.F./E.S.I .C BEYOND THE GRACE ITA 5 NO. 6847/MUM/2008 PERIOD WHICH WAS RELATING TO TH E MONTH OF FEBRUARY. THE LD COUNSEL RELIED ON THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF CIT V/S. ALOM EXTRUSION LTD., 319 ITR 306. THE A.O MADE THE DISALLOWANCE U/S. 36(1)(VA) AS HE WAS OF THE OPINIO N THAT THE EMPLOYEES CONTRIBUTION TO PF/ESIC EVEN IF MADE BEFORE FILING OF THE RETURN OF INCOME IS NOT COVERED U/S. 43B OF THE I.T. ACT. IN THE CASE O F ALOM EXTRUSION LTD.(SUPRA), THE ISSUE BEFORE THEIR LORDSHIP WAS WH ETHER THE OMISSION OF SECOND PROVISO TO SECTION 43B OF THE I.T. ACT 1961 BY THE FINANCE ACT 2003 OPERATED W.E.F. 1.2.2004 OR WHETHER IT OPERATED RET ROSPECTIVELY W.E.F. 1.4.1988. IN THE SAID CASE ALSO, THE ISSUE WAS CONC ERNING THE CONTRIBUTION PAYABLE BY THE EMPLOYER TO THE P.F/SUPERANNUATION F UND OR ANY OTHER FUND OF WELFARE OF THE EMPLOYEES. IN OUR OPINION, NOW TH E ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE S UPREME COURT IN THE CASE OF ALOM EXTRUSION LTD. (SUPRA). WE, THEREFORE, ALLO W THE GROUND TAKEN BY THE ASSESSEE AND DELETE THE ADDITION. 4. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSES SEE IS ALLOWED. SD/- R.S. PADVEKAR JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 16 TH SEPTEMBER 2011 M/S. SANGHAVI JEWELLERY MFG. CO. P. LTD. MA NO.260/MUM./2011 3 COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, J BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 30.8.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 5.9.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 9.9.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 9.9.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 9.9.2011 SR.PS 6. DATE OF PRONOUNCEMENT 16.9.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 16.9.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER