RAMNIRANJAN KEDIA TOURISM SERVICES P. LTD., V. ITO 7(2)1,

MA 57/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0602 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 08-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Section: 43B

Judgement Text

, , , , - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI .. , !. ' , #$ , # % BEFORE SHRI I.P.BANSAL, JM AND SHRI D.KARUNAKARA RA O, AM && #' ./ MA NO.57/MUM/2013 ( # )*+ , / ARISING OUT OF ITA NO.4938/MUM/2006) ( ' - ' - ' - ' - / / / / ASST.YEAR : 2003-2004) M/S.AIDEK TOURISM SERVICES (P) LTD. (FORMERLY KNOWN AS RAMNIRANJAN KEDIA TOURISM SERVICES (P) LTD.) SUIT 2, KALINDAS UDYOG BHAVAN CENTURY BAZAR, PRABHADEVI MUMBAI 400 025. PAN : AAACR2573G. THE INCOME TAX OFFICER WARD 7(2)(1) MUMBAI. ( # / // / APPLICANT) ' ' ' ' / VS. ( ./01/ RESPONDENT) # 2 22 2 3 # 3 # 3 # 3 # / APPLICANT BY : SHRI S.L.JAIN ./01 2 3 # 2 3 # 2 3 # 2 3 # / RESPONDENT BY : SHRI D.K.SINHA ' 2 +$ / / / / DATE OF HEARING : 28.06.2013. 45- 2 +$ / DATE OF PRONOUNCEMENT : 28.06.2013. #6 #6 #6 #6 / / / / O R D E R PER I.P.BANSAL, JM : VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE IT IS THE CASE OF THE ASSESSEE THAT A MISTAKE HAS CREPT IN, IN THE OR DER OF TRIBUNAL DATED 16 TH FEBRUARY, 2009 PASSED IN ITA NO.4938/MUM/2006 VIDE WHICH IT HAS BEEN HELD THAT DISALLOWANCE U/S 43B WAS REQUIRE D TO BE MADE IN RESPECT OF EMPLOYERS AS WELL AS EMPLOYEES CONTRIB UTION TO PF AND ESIC WHICH ARE NOT PAID WITHIN THE PRESCRIBED TIME INCLUDING THE GRACE PERIOD AND IT WAS HELD THAT ADDITION IN RESPE CT OF PAYMENTS MADE BEYOND THE GRACE PERIOD ARE RESTORED. IN OTHER WORDS, IN RESPECT MA NO.57/MUM/2013 M/S.AIDEK TOURISM SERVICES (P) LTD. 2 OF DISALLOWANCE OF ` 4,67,016 BEING EMPLOYEES CONTRIBUTION AND ` 7,18,237 BEING EMPLOYERS CONTRIBUTION FOR PF AND E SIC WERE DISALLOWED BY THE ASSESSING OFFICER ON ACCOUNT OF B ELATED PAYMENT AND IN THE APPEAL FILED BEFORE THE CIT(A), THE LEAR NED CIT(A) HAS HELD THAT SO FAR IT RELATES TO CONTRIBUTION TO PF A ND ESIC IF THE PAYMENT IS MADE WITHIN THE GRACE PERIOD THE SAME IS ALLOWABLE AND IF THE SAME IS OUT OF GRACE PERIOD, THEN THE ADDITION IS CONFIRMED. IN RESPECT OF EMPLOYERS CONTRIBUTION TOWARDS PF AND E SIC, IF THE PAYMENT IS MADE BEFORE THE FILING OF THE RETURN, DE DUCTION SHOULD BE ALLOWED TO THE ASSESSEE. THE DEPARTMENT HAD FILED A N APPEAL AGAINST THAT ORDER AND CONTESTED THE ADDITION ON DEPARTMENT AL APPEAL. THE TRIBUNAL VIDE ORDER DATED 16 TH FEBRUARY, 2009, AS MENTIONED ABOVE, FOLLOWING THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT V. GODAVARI (MANNAR) SAKHAR KARKHANA LTD. [212 CTR (BOM.) 384] AND IN THE CASE OF CIT V. PAMWI TISSUES LIMITED [215 CTR (BOM.) 150] HAS HELD THAT THE BELATED PAYMENTS MADE BY THE ASS ESSEE REGARDING PF AND ESIC IN RESPECT OF EMPLOYERS AS W ELL AS EMPLOYEES BEYOND GRACE PERIOD ARE NOT ALLOWABLE. 2. VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE, I T IS THE CASE OF THE ASSESSEE THAT RELIEF GIVEN BY CIT(A) WAS IN ACC ORDANCE WITH THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. [319 ITR 306] WHERE IT HAS BEEN HELD THAT AMENDMENT EFFECTED TO SECTION 43B BY FINANCE ACT, 2003 BY OMI SSION OF SECOND PROVISO AND CORRESPONDING AMENDMENT TO FIRST PROVIS O ARE CURATIVE IN NATURE AND EFFECTIVE RETROSPECTIVELY FROM 01.04.198 8. THUS THE MA NO.57/MUM/2013 M/S.AIDEK TOURISM SERVICES (P) LTD. 3 DECISION IN THE AFOREMENTIONED CASES BY THE BOMBAY HIGH COURT HAS BEEN OVERRULED. IT IS ALSO THE CASE OF THE ASSESSEE THAT SUBSEQUENT JUDGMENT OF SUPREME COURT HAS GIVEN RISE TO A MISTA KE APPARENT FROM RECORD ON LAW WHICH REQUIRE RECTIFICATION AND SUBSE QUENTLY IN VIEW OF LAW STATED BY HONBLE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. AND DELHI HIGH COURT IN THE CASE OF CIT V . AIMIL LIMITED [(2010) 321 ITR 508 (DELHI)] THAT THE SAID DECISION IS ALSO APPLICABLE TO EMPLOYEES CONTRIBUTION. THUS IT WAS PLEADED THAT THE ORDER PASSED BY THE TRIBUNAL DATED 16 TH FEBRUARY, 2009 IS CONTRARY TO THE SUBSEQUENT DECISION BY THE HONBLE SUPREME COUR T IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. AND THEREFORE, ORDER OF TRIBUNAL SHOULD BE SUITABLE AMENDED OR ANY OTHER ORDER BE PASSED WH ICH THE TRIBUNAL MAY DEEM FIT. 3. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AND WE FOUND THAT IN THE SUBSEQUENT DECISION OF THE HONBLE SUPREME C OURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. CONTRARY VIEW HAS BEEN EXPRESSED FROM THE DECISIONS WHICH HAVE BEEN RELIED UPON BY T HE TRIBUNAL. ACCORDING TO WELL SETTLED LAW IF THERE IS SUBSEQUEN T DECISION OF APEX COURT AND THE MATTER HAS EARLIER BEEN DECIDED ON TH E BASIS OF SOME OTHER DECISION WHICH HAS BEEN OVERRULED, THEN IT WI LL GIVE RISE TO A MISTAKE AND REFERENCE IN THIS REGARD CAN BE MADE TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT V. SAURASHTRA KUTCHCH STOCK EXCHANGE LIMITED [305 ITR 227 (SC)] . THEREFORE, THERE IS A MISTAKE APPARENT FROM RECORD AND THE ORD ER DATED 16 TH FEBRUARY, 2009 REQUIRES READJUDICATION. THEREFORE, THE ORDER IS MA NO.57/MUM/2013 M/S.AIDEK TOURISM SERVICES (P) LTD. 4 RECALLED AND REGISTRY IS DIRECTED TO FIX THE APPEAL FOR FRESH HEARING IN THE REGULAR COURSE. 4. 7 +8 # 2 && #' + 9 2 :+ ;< IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH JUNE, 2013. #6 2 45- ='8 5 2 > SD/- SD/- (D.KARUNAKARA RAO) (I.P.BANSAL) #$ #$ #$ #$ / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; =' DATED : 28 TH JUNE, 2013. DEVDAS* #6 2 . +?& @#&-+ #6 2 . +?& @#&-+ #6 2 . +?& @#&-+ #6 2 . +?& @#&-+/ COPY OF THE ORDER FORWARDED TO : 1. # / THE APPLICANT. 2. ./01 / THE RESPONDENT. 3. A () / THE CIT(A)-VII, MUMBAI. 4. A / CIT 5. &D> . + ' , , / DR, ITAT, MUMBAI 6. >! E / GUARD FILE. #6' #6' #6' #6' / BY ORDER, /&+ . + //TRUE COPY// ) ) ) )/ // /; : ; : ; : ; : ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI