SATISH D. VITHALANI (HUF), V. ITO 15(1)(4),

MA 39/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1467 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 17-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 29-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM . / MA NO. 39/MUM/2013 (ARISING OUT OF ITA NO. 3241/MUM/2007) ( / ASSESSMENT YEAR: 2004-05) SATISH D. VITHALANI (HUF), 5, 32, 2 ND PANJRAPOLE LANE, C. P. TANK, MUMBAI-400 004 / VS. ITO 15(1)(4) MATRU MANDIR, 1 ST FLOOR, OPP. BHATIA HOSPITAL, NANA CHOWK, MUMBAI ' ./# ./PAN/GIR NO. AAAHS 4434 G APPLICANT : RESPONDENT APPLICANT BY : NONE RESPONDENT BY : SHRI RAVI PRAKASH $ % & '( / DATE OF HEARING : 17.01.2014 )*+ & '( / DATE OF PRONOUNCEMENT : 17.01.2014 , / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS APPLICATION U/S.254(2) OF T HE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER), BY THE ASSESSEE IN RESPECT OF TH E ORDER BY THE TRIBUNAL DATED 30.01.2009 IN ITS CASE FOR THE ASSESSMENT YEAR (A.Y .) 2004-05. 2. THE ONLY ISSUE ARISING IN APPEAL AND DECIDED BY THE TRIBUNAL PER ITS IMPUGNED ORDER IS THE DISALLOWANCE IN RESPECT OF THE EMPLOYE ES CONTRIBUTION TO PROVIDENT FUND (PF) U/S.2(24)(X) R.W.S. 36(1)(VA) OF THE ACT, I.E., THE SECTIONS ALLOWING DEDUCTION IN ITS RESPECT 2 MA NO. 39/MUM/2013 (A.Y. 2004-05) SATISH D. VITHALANI (HUF) VS. ITO UNDER THE ACT. THE TRIBUNAL NOTED THAT THE PAYMENTS WERE MADE BOTH WITHIN AND AFTER THE GRACE PERIOD PRESCRIBED UNDER THE RELEVANT ACT. ACC ORDINGLY, FOLLOWING THE CONSISTENT VIEW BEING ADOPTED BY THE TRIBUNAL, IT PER THE IMPU GNED ORDER ALLOWED THE CLAIM IN RESPECT OF THE EMPLOYEES CONTRIBUTION PAID WITHIN THE GRACE PERIOD WHILE CONFIRMING THE DISALLOWANCE WHERE PAID BEYOND THE GRACE PERIOD (AS AFORESAID). THE ASSESSEE HAS NOW MOVED A MISCELLANEOUS PETITION (RECEIVED IN THIS OF FICE ON 29.01.2013), CLAIMING THAT THE MATTER OUGHT HAVE BEEN DECIDED IN HIS FAVOUR IN VIE W OF THE DECISION BY THE APEX COURT IN CIT VS. ALOM EXTRUSIONS LTD. [2009] 319 ITR 306 (SC). THERE HAS BEEN NON- CONSIDERATION BY THE TRIBUNAL OF THE DECISIONS CITE D BEFORE IT, SO THAT THE IMPUGNED ORDER NEEDS TO BE RECALLED TO DECIDE THE MATTER AFRESH ON MERITS AFTER HEARING THE PARTIES. 3. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF THE NOTICE OF HEARING (DATED 18.11.2013) INASMUCH AS THE SAME, SE NT PER REGISTERED POST ACKNOWLEDGMENT DUE (RPAD), HAS NOT BEEN RECEIVED BA CK FROM THE POSTAL AUTHORITIES. THE LD. DR HAS ALSO PLACED ON RECORD EVIDENCE OF SE RVICE OF NOTICE OF HEARING; THE DEPARTMENT HAVING BEEN ALSO DIRECTED FOR THE SAME B Y THE BENCH VIDE ORDER SHEET ENTRY DATED 08.11.2013. ACCORDINGLY, THE HEARING IN THE M ATTER WAS PROCEEDED WITH. RELIANCE IS PLACED BY THE ASSESSEE PER ITS MA ON TH E DECISIONS IN THE CASE OF ASST. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC); CIT VS. SMT. ARUNA LUTHRA [2001] 252 ITR 76 (P&H) (FB); ITO VS. PAS SECURITIES PVT. LTD. (IN MA NO.772/MUM/2009 DATED 11.02.2010); V. R. CHITTANANDAM VS. ASST. CIT [2010] 5 ITR 258 (TRIB) (CHENNAI), GANGES LINES (INDIA) (P) LTD. VS. DY. CIT [2009] 121 TTJ 946 (MUM) AND MOHAN MEAKINS LTD. VS. ITO [2004] 89 ITD 179 (DEL) (TM). 4. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE ( DR) WOULD CONTEND THAT THERE IS NO MISTAKE, MUCH LESS APPARENT FROM RECORD, IN THE IMPUGNED ORDER; THE TRIBUNAL, AS NOTED BY IT, HAVING ADOPTED A VIEW CONSISTENT WITH ITS VI EW. FURTHER, APART FROM THE DECISIONS BY THE TRIBUNAL, ITS VIEW IS SUPPORTED BY DECISIONS B Y THE HIGH COURTS, AS IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION [ 2014] 41 TAXMANN.COM 100 3 MA NO. 39/MUM/2013 (A.Y. 2004-05) SATISH D. VITHALANI (HUF) VS. ITO (GUJ), PLACING A COPY OF THE SAME ON RECORD. THE MATTER IS , IN ANY CASE, DEBATABLE, SO THAT NO RECTIFICATION U/S. 254(2) WOULD LIE. 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, AS WELL AS THE CASE LAW CITED. WITHOUT DOUBT, A DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT OR BY THE APEX COURT WOULD HOLD EVEN WHERE RENDERED SUBSEQUEN T TO THE ORDER BY THE SUBORDINATE COURT OR TRIBUNAL INASMUCH AS IT IS SETTLES A SUBST ANTIAL QUESTION OF LAW, WHICH WOULD RELATE BACK TO DATE OF THE RELEVANT PROVISION. AS SUCH, AN ORDER INCONSISTENT THEREWITH WOULD MERIT RECTIFICATION. THIS IS THE SUM AND SUBSTANCE OF THE SEVERAL DECISIONS CITED BY THE ASSESSEE BEFORE US. IN THE FACTS OF THE INSTANT CASE, THE DECISION BY T HE APEX COURT IN ALOM EXTRUSIONS LTD. (SUPRA) IS U/S.43B AND NOT U/S. 2(24)(X) R.W.S. 36( 1)(VA), WHICH LATTER SECTIONS ONLY GOVERN THE DEDUCTION OF THE EMPLOYEES CONTRIBUTION TO THE FUND SET UP UNDER THE EMPLOYEES STATE INSURANCE ACT, 1948 OR ANY OTHER FU ND FOR THE WELFARE OF THE EMPLOYEES. THE APEX COURT PER THE SAID DECISION HELD THE OMISS ION OF SECOND PROVISO TO SECTION 43B BY FINANCE ACT, 2003 W.E.F. 01.04.2004 AS RETROSPEC TIVE, SO THAT IT WOULD APPLY W.E.F. 01.04.1989, I.E., THE DATE OF ITS INSERTION BY FINA NCE ACT, 1989. IT IS TRITE LAW THAT A PRECEDENT IS AN AUTHORITY ONLY FOR WHAT IT ACTUALLY DECIDES AND NOT WHAT MAY REMOTELY OR EVEN LOGICALLY FOLLOW FROM IT [REF: GOODYEAR INDIA LTD. VS. STATE OF HARYANA AND ANOTH ER [1991] 188 ITR 402 (SC)]. THE SPECIAL BENCH OF THE TRIBUNAL IN JT. CIT V. ITC LTD . [2008] 112 ITD 57 (KOL)(SB) HAS CLARIFIED THAT SECT ION 43B IS ONLY IN RESPECT OF THE EMPLOYEES CONTRIBUTION TO THE RELEVANT FUNDS. APAR T THERE-FROM, AS NOTED BY THE TRIBUNAL, PER ITS DETAILED ORDER IN ITO V . LKP SECURITIES LTD. [2013] 36 CCH 093 (MUM), THE VIEW IS SUPPORTED BY THE DECISIONS BY THE HONBLE JURISD ICTIONAL HIGH COURT AS WELL. FURTHER, THE HONBLE GUJARAT HIGH COURT AS PER ITS DECISION IN GUJARAT STATE ROAD TRANSPORT CORPORATION (SUPRA), AFTER AN ELABORATE DISCUSSION IN THE MATTE R, ALSO HAD LIKEWISE, NOTING THE SEVERAL DECISIONS BY THE DIFFERENT HIGH COURTS TAKING A CONTRARY VIEW IN THE MATTER. THE DECISION BY THE APEX COURT IN ALOM EXTRUSIONS LTD. (SUPRA), WHICH IS BINDING ON IT, WAS ALSO DULY CONSIDERED AND DISTINGUISHED. IN ITS VIEW , THIS IS THE ONLY VIEW POSSIBLE. WE, 4 MA NO. 39/MUM/2013 (A.Y. 2004-05) SATISH D. VITHALANI (HUF) VS. ITO THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER. THE MATTER, IN ANY CASE, WOULD QUALIFY FOR BEING CONSIDERED AS DEBATABLE, EXCLUDING RECTIF ICATION U/S. 254(2). WE, ACCORDINGLY, HAVE NO HESITATION IN REJECTING THE ASSESSEES MA. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 17, 2 014 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER $ % MUMBAI; - DATED : 17.01.2014 . ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. '. / THE APPLICANT 2. /0'. / THE RESPONDENT 3. $ 1' ( ) / THE CIT(A) 4. $ 1' / CIT CONCERNED 5. 45 /' 6 , ( 6+ , $ % / DR, ITAT, MUMBAI 6. 578 9% / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI