RADHAKRISHNA HOSPITALITY SER. LTD, V. ACIT CEN CIR 23,

MA 416/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5286 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 30-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAVA
• Assessee Lawyers: J D MISTRY

Judgement Text

1 MA 416/M/2010 M/S RADHAKRISHNA HOSPITALITY SERVICES P. LTD. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D BEFORE SHRI P.M. JAGTAP, A.M. AND SHRI R.S. PADVEKA R, JM MISC. APPLICATION NO. 416/MUM/2010 ARISING OUT OF ITA NO. 2630/MUM/2005 & ITA NO. 2716 /MUM/05 ASSESSMENT YEAR 2001-02 M/S RADHAKRISHNA HOSPITALITY SERVICES PVT. LTD., (NAME CHANGED TO SEDEXO FOOD SOLUTIONS INDIA PVT. LTD.), IST FLOOR, GEMSTAR COMMERCIAL COMPLEX,KANCHPADA, MALAD(W) MUMBAI 64. PAN AAACR 2547 Q VS. A.C.I.T., CENT. CIRCLE -33, ROOM NO. 32(3), AAYAKAR BHAWAN, M.K. ROAD, MUMBAI . APPLICANT RESPONDENT APPLICANT BY SHRI J.D. MISTRY RESPONDENT BY SHRI R.S. SRIVASTAVA ORDER PER P.M. JAGTAP, A.M. BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 10 TH JULY, 2006 PASSED IN ITA NO. 2716/MUM/2005 & ITA N O. 2630/MUM/2005 ON THE GROUND THAT THE VIEW TAKEN THE REIN WHILE DISALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF BELATED PA YMENTS OF EMPLOYEES CONTRIBUTION TO PF AND ESIC MADE AFTER THE DUE DATE (INCLUDING GRAC E PERIOD) BUT BEFORE THE DATE OF FILING OF RETURN OF INCOME FOR THE RELEVANT YEAR IS NOT IN CONFORMITY WITH THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ALOM EXCLUSION LTD. 31 9 ITR 306 RENDERED SUBSEQUENTLY. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT WHILE DISP OSING OF THE AFORESAID APPEAL VIDE ITS ORDER DATED 10 TH JULY, 2006 (SUPRA), THE DISALLOWANCE MADE BY THE A.O. AND CONFIRMED BY 2 MA 416/M/2010 M/S RADHAKRISHNA HOSPITALITY SERVICES P. LTD. THE LD. CIT(A) ON ACCOUNT OF BELATED PAYMENTS OF EM PLOYEES CONTRIBUTION TOWARDS PF AND ESIC BEYOND THE DUE DATE (INCLUDING THE GRACE P ERIOD) BUT WITHIN THE DUE DATE OF FILING OF RETURN OF INCOME FOR THE RELEVANT YEAR U/ S 43-B WAS SUSTAINED BY THE TRIBUNAL. IN THE JUDGMENT DELIVERED SUBSEQUENTLY IN THE CASE OF ALOM EXCLUSION LTD. (SUPRA), THE HONBLE SUPREME COURT HAS HELD THAT EMPLOYEES CONT RIBUTION TO PF AND ESIC BEYOND THE DUE DATE (INCLUDING THE GRACE PERIOD) BUT WITHI N THE DATE OF FILING OF RETURN OF INCOME FOR THE RELEVANT YEAR CANNOT BE DISALLOWED U/S 43-B . THE DECISION RENDERED BY THE TRIBUNAL VIDE ITS ORDER DATED 10 TH JULY, 06 (SUPRA) THUS IS CONTRARY TO THE VIEW EXPR ESSED BY THE HONBL;E SUPREME COURT IN THE CASE OF ALOM E XCLUSION LTD. (SUPRA) RENDERED SUBSEQUENTLY AND THIS POSITION HAS NOT BEEN DISPUTE D BY THE LD. D.R. AT THE TIME OF HEARING BEFORE US. IN THE CASE OF ACIT VS. SAURASHTRA KUTC H STOCK EXCHANGE LTD. 305 ITR 227(SC), THE HONBLE SUPREME COURT HAS HELD THAT EV EN THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT ALTHOUGH RENDERED SUBSEQUENTLY WOULD GIV E RISE TO A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WHICH IS NOT IN CONFORMITY WITH THE SAID DECISION. KEEPING IN VIEW THE SAID DECISION OF THE HONBLE AP EX COURT WHICH IS SQUARELY APPLICABLE IN THE PRESENT CONTEXT, WE RECTIFY THE O RDER OF THE TRIBUNAL DTD.10.7.06 (SUPRA) AND DIRECT THE A.O. TO DELETE THE DISALLOWANCE MADE U/S 43-B IN THE RELEVANT YEAR ON ACCOUNT OF BELATED PAYMENTS OF EMPLOYEES CONTRIBUT ION TO PF AD ESIC TO THE EXTENT THE SAME WERE MADE BEFORE THE DUE DATE OF FILING OF RET URN OF INCOME FOR THE RELEVANT YEAR. 3. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 15 TH OCTOBER, 2010. SD/- SD/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED 15 TH OCTOBER , 2010. RK 3 MA 416/M/2010 M/S RADHAKRISHNA HOSPITALITY SERVICES P. LTD. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) C-VIII, MUMBAI 4. THE CIT- C-II, MUMBAI 5. THE DR BENCH, D 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4 MA 416/M/2010 M/S RADHAKRISHNA HOSPITALITY SERVICES P. LTD. DATE INITIALS 1. DRAFT DICTATED 13.10.10 SR.P.S./P.S. 2. DRAFT PLACED BEFORE AUTHOR 14.10.10 SR.P.S./P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER. - J.M./A.M. 4.DRAFT DISCUSSED/ APPROVED BY SECOND MEMBER. J.M./A.M. 5. APPROVED DRAFT COMES TO THE SR.P.S./P.S. SR.P.S./P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S. 8. DATE OF WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.