Sayaji Industries Ltd., Ahmedabad V. The Dy.CIT, Circle-8, Ahmedabad

MA 273/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4127 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 16-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Section: 43B

Judgement Text

MA NO. 273/AHD/2018 SAYAJI INDUSTRIES LTD VS. DCIT ASSESSMENT YEAR: 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR VP AND MAHAVIR PRASAD JM] M.A. NO. 273/AHD/2018 (IN ITA NO. 1465/AHD/2015) ASSESSMENT YEAR: 2011-12 SAYAJI INDUSTRIES LTD ..................APP LICANT P.O. KATHWADA, AHMEDABAD 382 430 [PAN : AADCS 0861 R] VS. DEPUTY COMMISSIONER OF INCOME-TAX ..... .......................RESPONDENT CIRCLE-8, AHMEDABAD APPEARANCES BY: SANJAY R SHAH, FOR THE APPLICANT LALIT P JAIN, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 01.02.2019 DATE OF PRONOUNCING THE ORDER : 11.02.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. BY WAY OF THIS APPLICATION, THE ASSESSEE APPLICA NT POINTS OUT A MISTAKE APPARENT ON RECORD, IN OUR ORDER DATED 2 ND AUGUST 2018, AND PRAYS THAT THE SAID ORDER BE RECALLED TO RECTIFY THE SAME. THE MISTAKE IS POINTED OUT AS FOLLOWS:- 1. THE PRESENT MISCELLANEOUS APPLICATION IS FILED WITH A REQUEST TO CORRECT A MISTAKE OF FACT IN THE ORDER PASSED IN ITA NO.1465/ AHD/2015 ON 02/08/2018 WHILE ADJUDICATING GROUND NO. 3 RAISED BY APPLICANT IN THE SAID APPEAL. 2. BEFORE THE HON'BLE ITAT, APPELLANT HAD RAISED GROUND NO.3 IN ITS APPEAL NO. 1465/AHD/2015, 'THE LEARNED CTT(A) ERRED IN FACTS AND IN LAW CONFI RMING THE DISALLOWANCE OF RS.52,11,366/- EMPLOYEE'S CONTRIBUT ION TO PF U/S 36(1)(VA) R.W.S 2(24) WITHOUT APPRECIATING THAT PAY MENTS WERE WITHIN THE TIME PERMISSIBLE UNDER THE RESPECTIVE ACT. IT B E SO HELD NOW.' 3. THE ABOVE GROUND WAS ADJUDICATED BY THE HON'BLE A BENCH OF ITAT VIDE PARA 11 ON PAGE 3 OF THE ORDER WHICH IS REPRODUCED HERE UNDER: 'LEARNED REPRESENTATIVES AGREE THAT THIS ISSUE IS N OW COVERED, AGAINST THE ASSESSEE, BY HON'BLE GUJARAT HIGH COURT'S JUDGE MENT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORTATION CORPOR ATION, 366 ITR 170 (GUJ.). RESPECTFULLY FOLLOWING THE SAME, WE CONFIRM THE ACTION OF AUTHORITIES BELOW AND DECLINE TO INTERFERE IN THE M ATTER. GROUND NO 3 IS THUS DISMISSED. MA NO. 273/AHD/2018 SAYAJI INDUSTRIES LTD VS. DCIT ASSESSMENT YEAR: 2011-12 PAGE 2 OF 3 4. IN THE ABOVE PARA, HON'BLE BENCH HAS FOLLOWED T HE JUDGEMENT OF GUJARAT HIGH COURT IN CASE OF GUJARAT STATE ROAD TRANSPORTA TION CORPORATION (GSRTC) 366 ITR 170. IN THE FACTS OF THE SAID CASE, THE APPELLANT DEPOSITED EMPLOYEES' CONTRIBUTION TO PROVIDENT FUND POST THE DUE DATE AS REQUIRED IN THE PROVIDENT FUND ACT, BUT BEFORE THE FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. THE HONORABLE HIGH COURT HELD THAT SINCE THE A SSESSEE DID NOT DEPOSIT EMPLOYEES' CONTRIBUTION TO EMPLOYEES' ACCOUNT IN RE LEVANT FUND ON OR BEFORE THE DUE DATE PRESCRIBED IN EXPLANATION TO SECTION 3 6(1)(VA), NO DEDUCTION WOULD BE ADMISSIBLE EVEN THOUGH HE DEPOSITS SAME BE FORE DUE DATE UNDER SECTION 43B OF THE ACT. 5. IN THE FACTS OF THE INSTANT CASE, YOUR APPLICAN T HAS DEPOSITED THE EMPLOYEE'S CONTRIBUTION OF PROVIDENT FUND ON OR BEF ORE THE DUE DATE SPECIFIED UNDER THE PROVIDENT FUND ACT, AFTER INCLUDING THE G RACE PERIOD OF FIVE DAYS AS PER CIRCULAR NO. E.128(1)60-III DATED 19/03/1964 AS MODIFIED BY CIRCULAR NO. E.11/128(SECTION 14-B AMENDMENT)/73 DATED 24/10/197 3 OF CPFC. THE SAME IS EVIDENT FROM DISCLOSURE OF 'CLAUSE 16(B): PARTIC ULARS OF CONTRIBUTIONS OF PROVIDENT FUND AND ESI RECEIVED FROM EMPLOYEES WITH DUE DATE AND PAYMENT DATE TO RESPECTIVE AUTHORITIES' IN ANNEXURE 5 OF TH E TAX AUDIT REPORT (PAGE 121 OF THE PAPER BOOK FILED BEFORE THE BENCH). 6. YOUR APPLICANT RESPECTFULLY SUBMITS THAT THE FAC TS OF THE CASE OF GSRTC 366 ITR 170 ARE SQUARELY DISTINGUISHABLE FROM THE FACTS IN THE PRESENT CASE SINCE THE APPLICANT HAS DEPOSITED EMPLOYEE CONTRIBUTION B EFORE THE DUE DATE SPECIFIED UNDER THE PROVIDENT FUND ACT (PAGE 121 OF PAPER BOOK), WHICH WAS NOT THE FACT PATTERN IN THE CASE OF GSRTC (SUPRA). 7. YOUR APPLICANT RESPECTFULLY SUBMITS THAT THE NO N-APPLICABILITY OF DECISION OF GUJARAT HIGH COURT IN CASE OF GSRTC WAS ALSO SPECIF IED IN THE SYNOPSIS OF CONTENTIONS OF THE APPELLANT FILED BY THE APPLICANT DURING THE COURSE OF HEARINGS BEFORE THE BENCH, A COPY OF WHICH IS AGAIN ATTACHED WITH THIS MISCELLANEOUS APPLICATION. 8. IT WAS ALSO POINTED OUT IN THE SYNOPSIS FILED AT THE TIME OF HEARING AS WELL DURING THE COURSE OF HEARING, THAT SUCH DETAILS OF PAYMENT ARE AVAILABLE AT PAGE 121 OF THE PAPER BOOK AND THAT IN APPELLANT'S OWN CASE IN AY 2005-06 AND AY 2006-07, HON'BLE GUJARAT HIGH COURT ON IDE NTICAL FACTS DECIDED THE ISSUE IN FAVOUR OF THE APPLICANT (AFTER DISTINGU ISHING GUJARAT HIGH COURT DECISION IN THE CASE OF GSRTC (SUPRA)), A COPY OF W HICH WAS ALSO ATTACHED AT PAPER BOOK PAGE 114-120, RELEVANT PAGES BEING 118-1 19. 9. FROM THE TENOR OF THE ORDER OF THE HON'BLE TRI BUNAL, IT APPEARS THAT THE FACTUAL MISTAKE OF CONSIDERING PAYMENT OF EMPLOYEES ' CONTRIBUTION TO PF BEYOND THE DUE DATE AS PRESCRIBED IN THE PROVIDENT FUND ACT HAS GREATLY INFLUENCED THE DECISION OF THE HON'BLE BENCH IN DEC IDING THE ISSUE OF CLAIM OF DEDUCTION OF EMPLOYEE'S CONTRIBUTION OF PROVIDENT F UND. HENCE, THE APPLICANT HEREIN REQUESTS THE HON'BLE BENCH TO TAKE COGNIZANC E OF THE DISCLOSURE MADE IN TAX AUDIT REPORT AND BINDING DECISION OF HON'BLE GUJARAT HIGH COURT IN APPLICANT'S OWN CASE FOR EARLIER YEARS, CORRECT THE ABOVE MISTAKE AND ALSO RECALL THE DECISION GIVEN IN RESPECT OF THIS ISSUE ON EMPLOYEE'S CONTRIBUTION OF MA NO. 273/AHD/2018 SAYAJI INDUSTRIES LTD VS. DCIT ASSESSMENT YEAR: 2011-12 PAGE 3 OF 3 PROVIDENT FUND U/S 36(1)(VA) R.W.S 2(24)(X) OF THE ACT FOR THE SAKE OF JUSTICE IN THE MATTER. 10. THESE BEING MISTAKES APPARENT FROM RECORD, THIS MISCELLANEOUS APPLICATION IS FILED BY THE APPLICANT COMPANY WITH A REQUEST TO HON'BLE BENCH TO RECTIFY THE SAME AND RECALL THE ORDER IN APPEAL NO. 1465/AHD/2015 ON THE ISSUE OF EMPLOYEE'S CONTRIBUTION OF PROVIDENT FUND U/S 36(1)(VA) R.W.S 2(24)(X) OF THE ACT TO BE DECIDED AFRESH. 2. PARTIES ARE HEARD AND RECORDS HAVE BEEN PERUSED. 3. THE PLEA OF THE APPLICANT IS INDEED WELL TAKEN; THERE IS INDEED A MISTAKE APPARENT ON RECORD INASMUCH AS THE PLEA REGARDING P AYMENT WITHIN PAYMENT OF GRACE PERIOD HAS NOT BEEN DEALT WITH BY THE TRIBUNA L. 4. IN VIEW OF THE ABOVE POSITION, AS ALSO BEARING I N MIND ENTIRETY OF THE CASE, WE RECALL PARAGRAPH NOS. 10, 11 AND 12 OF OUR ORDER DA TED 2 ND AUGUST 2018, AND DIRECT THE REGISTRY TO LIST THE APPEAL FOR THE LIMITED PUR POSES OF FRESH ADJUDICATION OF GROUND NO.3. ORDERED, ACCORDINGLY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 11 TH FEBRUARY, 2019. SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 11 TH FEBRUARY, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PREPARED AS PER T WO PAGE MANUSCRIPTS OF HONBLE VP, WHICH ARE ATTACHED WITH APPEAL FILE...... 07.02.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ... 08.02.2019........ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 11.02.2019... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 11.02.2019 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .. 11.02.2019.... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......