KONEGA INTERNATIONAL P.LTD, V. ITO WD 8(2)(2),

MA 32/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3829 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 19-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMMIT K R
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI D.K. AGARWAL, JM & SHRI R.K.PANDA, AM M.A. NO. 32/MUM/2010 ARISING OUT OF I.T.A. NO. 4747/MUM/2006 (ASSESSMENT YEAR 2003-04) M/S. KONEGA INTERNATIONAL PVT. LTD., PLOT NO. 25, MAROL CO-OP. INDL. ESTATE, M.V. ROAD, ANDHERI (E), MUMBAI-400 059 PAN: AAACK2679J VS. ITO-8(2)-2 R. NO. 212, 2 ND FLOOR AAYAKAR BHAVAN MUMBAI APPELLANT RESPONDENT APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI SUMMIT K.R. ORDER DATE OF HEARING: 04.06.2010 DATE OF ORDER: 11.06.2010 PER R.K.PANDA, AM , THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N (MA) REQUESTS THE TRIBUNAL TO RECTIFY ITS ORDER U/S. 254 (2) OF THE INCOME-TAX ACT, 1961 (THE ACT) IN VIEW OF THE SUBSEQUENT DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSION S LTD. REPORTED IN 319 ITR 306. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO T HE ORDER OF THE TRIBUNAL SUBMITTED THAT EMPLOYERS CONTRIBUTION TO PF AND ESIC AMOUNTING TO RS.12,83,670/- AND RS.3,13,923, RESPEC TIVELY WERE DISALLOWED U/S. 43B OF THE ACT SINCE THEY WERE PAID AFTER THE GRACE PERIOD. REFERRING TO THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF ALOM EXTRUSION LTD. (SUPRA), HE SUBMITTED THAT AMENDMENT TO SECTION 43B OF THE ACT BY THE FINANCE ACT, 2003 HAS BEEN HELD TO B E RETROSPECTIVE AND PAYMENTS MADE BEFORE THE DUE DATE OF FILING OF RETU RN OF INCOME HAVE TO BE ALLOWED AS DEDUCTION. SINCE THE ASSESSEE IN THE INSTANT CASE HAS ADMITTEDLY MADE THE PAYMENTS AFTER THE GRACE PERIOD BUT BEFORE THE DUE DATE OF FILING OF THE RETURN, THEREFORE, NO DISALLO WANCE CAN BE MADE U /S. MA NO. 32/MUM/2010 M/S. KONEGA INTERNATIONAL PVT. LTD. ============================== 2 43B OF THE ACT AND THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF THE ASSESSEE HAS TO BE UPHELD AND THE GROUND RAISED BY THE REVENUE HAS TO BE DISMISSED. 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT I N VIEW OF THE DECISION OF THE HONBLE SUPREME COURT CITED ABOVE, THE TRIBUNAL MAY PASS AN APPROPRIATE ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BO TH THE SIDES. SINCE THE ASSESSEE HAS ADMITTEDLY MADE THE PAYMENTS RELATING TO EMPLOYERS CONTRIBUTION TO PF AND ESIC BEFORE THE D UE DATE OF FILING OF THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR, THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT (WHICH IS SUBSEQUENT TO THE DATE OF ORDER OF THE TRIBUNAL), THE ASSESSEE IS ENT ITLED TO DEDUCTION OF THE SAME AND NO DISALLOWANCE CAN BE MADE U/S. 43B OF TH E ACT. WE, THEREFORE, MODIFY THE ORDER OF THE TRIBUNAL U/S. 254(2) OF THE ACT AND HOLD THAT PARAS 3 AND 4 OF THE ORDER OF THE TRIBUNAL BE READ AS UNDER: 3 AFTER HEARING BOTH THE SIDES, WE FIND THAT THE A SSESSEE IN THE INSTANT CASE HAS DEPOSITED THE EMPLOYERS CO NTRIBUTION TO PF AND ESIC BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME. THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSION LTD. REPORTED IN 319 ITR 306, NO DISALLOWANCE CAN BE MAD E U/S. 43B OF THE INCOME-TAX, ACT, 1961. THEREFORE, THE O RDER OF THE CIT(A) DELETING THE DISALLOWANCE MADE BY THE ASSESS ING OFFICER U/S. 43B OF THE INCOME-TAX ACT, 1961 DOES N OT REQUIRE ANY INTERFERENCE AND THE SAME IS UPHELD. THE GROUN D RAISED BY THE REVENUE IS ACCORDINGLY DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 5. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS ACCO RDINGLY ALLOWED. PRONOUNCED ON 11 TH JUNE, 2010 SD/- (D.K. AGARWAL) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 11 TH JUNE, 2010 MA NO. 32/MUM/2010 M/S. KONEGA INTERNATIONAL PVT. LTD. ============================== 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-VIII, MUMBAI 4. THE CIT, MC-VIII, MUMBAI 5. THE DR C BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO