The Dy. CIT, Circle-2., Ahmedabad V. Shri Shyouraj Singh B. Chauhan, Ahmedabad

MA 77/AHD/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3955 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 12-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER & SHRI RAJPAL YADAV, JUDICIAL MEMBER) M.A. NO: 77/AHD/2014 (IN ITA NO: 2696/AHD/2010) (ASSESSMENT YEAR: 2007-08) THE D.C.I.T., CIRCLE-2, AHMEDABAD V/S SHRI SHYOURAJ SINGHB. CHAUHAN, PROP. PERFECT SECURITY SERVICE, 240, SARVODAYA COMM. CENTRE, 2 ND , FLOOR, SALAPOSE ROAD, NR. G.P.O. AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABPC 8119P APPELLANT BY : MS. SONIA KUMAR, SR. D.R. RESPONDENT BY : SHRI SAKAR SHARMA, A.R. ( )/ ORDER DATE OF HEARING : 05 -02-201 6 DATE OF PRONOUNCEMENT :10 -02-2016 PER RAJPAL YADAV, JUDICIAL MEMBER: 1. THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF REVENUE POINTING OUT AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 19 TH SEPTEMBER, 2013 PASSED IN ITA NO. 2696/AHD/2010. M.A NO. 77/AHD/14 (I N ITA NO. 2696/A/10) . A.Y. 2007-08 2 2. THE REVENUE HAS PLEADED THAT LEARNED ASSESSING OFFI CER HAD MADE DISALLOWANCE OF RS. 27,23,250/- AND RS. 2,06,010/- IN RESPECT OF DELAYED REMITTANCE OF EMPLOYEES CONTRIBUTION TO PF AND ESI ACCOUNT. THESE DISALLOWANCES WERE BEING DELETED BY THE LD. C IT(A). REVENUE HAS CHALLENGED THE ORDER OF THE LD. CIT(A) DATED 3 RD MAY, 2010 BEFORE THE TRIBUNAL. THE TRIBUNAL HAS DISMISSED THE APPEAL OF REVENUE BY FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF AIMIL LTD AND OTHERS, 321 ITR PAGE 508. IN THE APPLICATIO N, REVENUE HAS FURTHER PLEADED THAT HONBLE GUJARAT HIGH COURT HAS CONSIDERED THIS ISSUE IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRA NSPORT CORPORATION REPORTED IN 366 ITR PAGE 170. THE HONBLE HIGH COUR T HAS HELD THAT IF EMPLOYEES CONTRIBUTION COLLECTED BY AN ASSESSEE AN D NOT PAID IN THE PF AND ESI ACCOUNT WITHIN DUE DATE PRESCRIBED UNDER THOSE ACTS THEN ASSESSEE WILL NOT GET DEDUCTION. ON THE STRENGTH OF THIS DECISION, IT WAS CONTENDED THAT AN APPARENT ERROR HAS CREPT IN THE O RDER OF THE TRIBUNAL WHICH REQUIRED RECTIFICATION. IN SUPPORT OF ITS CON TENTION, THE REVENUE HAS RELIED UPON THE DECISION OF HONBLE GUJARAT HIG H COURT IN THE CASE OF SAURASTRA KUTCH STOCK EXCHANGE LTD REPORTED IN 2 62 ITR PAGE 146 (GUJ.). THIS DECISION HAS BEEN CONFIRMED BY THE HON BLE SUPREME COURT AND THE DECISION OF HONBLE SUPREME COURT IS REPORTED IN 305 ITR PAGE 227. ON THE OTHER HAND, LEARNED COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE HEARING IN THE MISCELLANEOUS APP LICATION BE KEPT IN ABEYANCE BECAUSE DECISION OF HONBLE GUJARAT HIGH C OURT HAS BEEN CHALLENGED BEFORE HONBLE SUPREME COURT. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GO NE THROUGH THE RECORD CAREFULLY. IN THE CASE OF SAURASTRA KUTCH ST OCK EXCHANGE LTD, HONBLE HIGH COURT HAS HELD THAT FAILURE TO APPLY J UDGMENT OF JURISDICTIONAL HIGH COURT IS AN APPARENT ERROR. THO UGH THE JUDGMENT OF M.A NO. 77/AHD/14 (I N ITA NO. 2696/A/10) . A.Y. 2007-08 3 THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION HAS COME UP AFTER THE DECISION OF THE TRIBUNAL. THE HONBLE COURT HAS DECIDED THAT AP PEAL ON 26 TH DECEMBER, 2013 WHEREAS TRIBUNAL HAS DECIDED THE APP EAL OF THE REVENUE ON 19 TH SEPTEMBER, 2013 BUT IT IS PERTINENT TO BEAR IN MIN D THAT A COURT DECIDED A DISPUTE BETWEEN THE PARTIES. THE CAUSE CAN INVOLVE DECISION ON FACTS. IT CAN ALSO INVOLVE A DE CISION ON POINT OF LAW BOTH MAY HAVE BEARING ON THE ULTIMATE RESULT OF THE CASE. WHEN COURT INTERPRET A PROVISION AND DECIDE AS TO WHAT IS THE MEANING AND EFFECT OF THE WORDS USED BY THE LEGISLATURE, IT IS DECLARA TION REGARDING THE STATUTE. IN OTHER WORDS, THE JUDGMENT DECLARES AS T O WHAT THE LEGISLATURE HAD SAID AT THE TIME OF PROMULGATION OF THE LAW. THE DECLARATION IS- THIS WAS THE LAW, THIS IS THE LAW, THIS IS HOW THE PROVISION SHALL BE CONSTRUED. IN THE CASE OF CIT VS . GUJARAT STATE ROAD TRANSPORT CORPORATION, HONBLE COURT HAS EXPLAINED AS TO HOW PROVISIONS OF SECTION 36(1)(VI), SECTION 2(24)(X) A LONG WITH 43B ARE TO BE CONSTRUED WHEN ASSESSEE COLLECTED THE AMOUNTS FR OM EMPLOYEES FOR MAKING CONTRIBUTION TOWARDS PF AND ESI BUT FAIL TO DEPOSIT SUCH AMOUNTS IN DUE DATE. THE EXPLANATION OF THESE PROVI SIONS IS TO BE CONSTRUED FROM THE INCEPTION OF THESE PROVISIONS IN THE ACT AND, THEREFORE, WHEN, TRIBUNAL, WHILE DECIDING THE APPEA L OF REVENUE CONSTRUED THEM IN A DIFFERENT WAY THAN IT HAS COMMI TTED AN APPARENT ERROR. 4. IN THE VIEW OF SUBSEQUENT DECISION OF THE HONBLE G UJARAT HIGH COURT, THE ORDER OF THE TRIBUNAL SUFFERS WITH AN APPARENT ERROR WHICH REQUIRED RECTIFICATION. THEREFORE, WE ALLOW THE MISCELLANEOU S APPLICATION OF THE REVENUE AND CONSEQUENTLY THE ORDER OF THE TRIBUNAL DATED 19 TH M.A NO. 77/AHD/14 (I N ITA NO. 2696/A/10) . A.Y. 2007-08 4 SEPTEMBER, 2013 IS RECALLED. THE APPEAL IS RESTORE D TO ITS ORIGINAL NUMBER. ORDER PRONOUNCED IN OPEN COURT ON 10 - 02 - 201 6. SD/- SD/- (PRAMOD KUMAR) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD