BERNHARD SCHULTE SHIPPING (I) P. LTD, V. ACIT 10(3),

MA 264/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3569 (ITAT-MUMBAI)
• Duration Of Justice: 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 20-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Section: 43B

Judgement Text

`IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAG HAVAN (JM) M.A. NO. 264/MUM/2010 ARISING OUT OF ITA NO. 3681/MUM/2008) ASSESSMENT YEAR- 2005-06 BERNHARD SCHULTE SHIPPING (INDIA) PVT. LTD., 401, OLYMPIA, 4 TH FLOOR, HIRANANDANI GARDENS, POWAI, MUMBAI-400 076 PAN-AAABCB7797H VS. THE ACIT 10(3), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY: S HRI P.R.V RAGHAVAN RESPONDENT BY: O.P. SHARMA O R D E R PER SMT. ASHA VIJAYARAGHAVAN (JM) VIDE PARA 7 AT PAGE NO. 3 OF THE TRIBUNAL ORDER DT . 15 TH JUNE, 2009, WE HAVE HELD AS FOLLOWS: MUMBAI TRIBUNAL IN THE CASE OF ACIT VS BHARAT UDYO G LTD. 313 ITR (AT) 168 HAS HELD AS FOLLOWS:WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUT HORITIES AS WELL AS THE AFORESAID JUDGEMENTS. WE HAVE NOTICED THAT THE JURISDICTIONAL HONBLE HIGH COURT OF BOMBAY HAS CONSIDERED THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS VINAY C EMENTS LTD (2009) 313 ITR (ST.)01 AND HELD THAT IF THE CONTRIB UTIONS ARE NOT PAID WITHIN THE DUE DATE, IT IS TO BE DISALLOWED. IN OU R OPINION, WE HAVE TO FOLLOW THE JUDGMENT OF THE JURISDICTIONAL HIGH C OURT IN THE CASE OF CIT VS PAMWI TISSUES LTD. (2008) 215 CTR (BOM) 150; (2009) 313 ITR 137 (BOM) AS THEIR LORDSHIPS HAVE HELD THAT THE SUPREME COURT HAS MERELY DISMISSED THE SPECIAL LEAVE PETITION IN CIT VS VINAY M.A. NO. 264 /M/10 2 CEMENTS LTD. (2009) 313 ITR (ST.)2 AND IT CANNOT BE SAID THAT THE SAID AMOUNTS TO LAW DECLARED BY THE HONBLE SUPREME COURT. 2. BY THIS MISCELLANEOUS APPLICATION IT HAS BEEN BR OUGHT TO OUR NOTICE THAT IN THE RECENT CASE OF CIT VS ALOM EXTRUSIONS L TD., (2009) 319 ITR 306 (SC), VIDE PARAGRAPHS 11 TO 18, THE APEX COURT HAS THOROUGHLY DISCUSSED THE EMPLOYERS CONTRIBUTION AND EMPLOYEE S CONTRIBUTION AND HAVE DIRECTED THAT BOTH EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION ARE ELIGIBLE FOR DEDUCTION U/S. 43B ON ACTUAL PAYMENT BASIS PROVIDED SUCH PAYMENTS ARE MADE BEFORE THE DATE OF FILING OF THE RETURN OF INCOME. 3. THEREFORE IT WAS SUBMITTED THAT THERE IS NEED FO R RECTIFICATION OF THE EARLIER ORDER DT. 15 TH JUNE 2009 SINCE THE JURISDICTIONAL HIGH COURTS DECISION IN THE CASE OF CIT VS PAMWI TISSUES LTD (2 008) 215 CTR (BOM) 150 (2009) 313 ITR 137 (BOM) HAS BEEN REVERSED BY T HE HONBLE APEX COURT. 4. IN EXERCISE OF THE POWERS VESTED IN US U/S. 254( 2) OF THE ACT, WE RECTIFY PARA-7 AT PAGE 3 OF OUR TRIBUNAL ORDER DT. 15.3.2009 AS FOLLOWS: CIT VS ALOM EXTRUSIONS LTD., (2009) 319 ITR 306 (S C), VIDE PARAGRAPHS 11 TO 18, THE SUPREME COURT HAS THO ROUGHLY DISCUSSED THE EMPLOYERS CONTRIBUTION AND EMPLOYEE S CONTRIBUTION AND HAVE DIRECTED THAT BOTH EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION ARE ELIGIB LE FOR DEDUCTION U/S. 43B ON ACTUAL PAYMENT BASIS PROVIDED SUCH PAYMENTS ARE MADE BEFORE THE DATE OF FILING OF THE RETURN OF INCOME. THE DECISION IN THE CASE OF CIT VS PAMWI TI SSUES LTD (2008) 215 CTR (BOM) 150 (2009) 313 ITR 137 (BOM) H AS BEEN REVERSED BY THE HONBLE APEX COURT. M.A. NO. 264 /M/10 3 5. FOLLOWING THE DECISION OF THE HONBLE SUPREME CO URT, WE ALLOW THE APPEAL PREFERRED BY THE ASSESSEE ON GROUND NOS. 1 TO 4 RAISED BEFORE US. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 11 TH DAY OF JUNE, 2009 SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI, DATED 11 TH JUNE, 2010 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI M.A. NO. 264 /M/10 4 DATE INITIALS 1 DRAFT DICTATED ON: 7.6.10 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 8 . 6 . 1 0 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/ PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______