ACIT Circle 1, Salem V. Tamil Nadu State Transport Corporation (Salem) Ltd., Salem

MA 84/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6839 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 04-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R ANITHA
• Assessee Lawyers: SRINIRANJANI
• Keywords: Additional evidence
• Section: 37(1)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 84/CHNY/2019 [IN I.T.A. NO. 3169/CHNY/2017] ASSESSMENT YEAR: 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, SALEM. VS. M/S. TAMIL NADU STATE TRANSPORT CORPORATION (SALEM) LTD., NO. 12, RAMAKRISHNA ROAD, SALEM 636007. [PAN: AAACT7678J] ( APPELLANT ) (R ESPONDENT ) APPELLANT BY : MS. R. ANITHA, JCIT RESPONDENT BY : MS. SRINIRANJANI, ADVOCATE / DATE OF HEARING : 21.06.2019 /DATE OF PRONOUNCEMENT : 26.07.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE REVENUE SEEKS TO RECALL THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO.3169/CHNY/2017 DATED 15.10.2018 FOR THE ASSESSMENT YEAR 2011-12. THE LD. DR HAS SUBMITTED THE APPEAL FILED BY THE REVENUE WAS DISMISSED AS NON MAINTAINABLE BASED ON THE ASSESSING OFFICERS ORDER DATED 15.11.2017, WHICH HAS, SUCH IS NON-EST ORDER, AS THE SAME HAS BEEN BASED ON THE DIRECTION OF CIT(A) WHICH IS WITHOUT JURISDICTION, THEREBY THE TRIBUNAL HAS NOT ADJUDICATED THE ISSUE OF SETTING ASIDE BY THE LD. CIT(A), IS A MISTAKE APPARENT ON RECORD AND PLEADED FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 15.10.2018. M.P. NO. 84/CHNY/19 2 2. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL. 3. WE HAVE HEARD BOTH SIDES, PERUSED THE ORDER OF THE TRIBUNAL. IN THIS CASE, THE ASSESSEE HAD DEBITED AN EXPENDITURE OF .2,35,91,384/- UNDER THE HEAD DAMAGES FOR REMITTANCE TO PENSION FUND TRUST. THE ASSESSEE HAS CLAIMED THAT THE DAMAGES HAVE BEEN LEVIED ON THE ASSESSEE @ 8.5% FOR DELAYED PAYMENT OF CONTRIBUTION WHICH WAS ONLY COMPENSATORY IN NATURE AND NOT THE PENALTY, BUT THE ASSESSING OFFICER HAS NOT ACCEPTED THE CLAIM OF THE ASSESSEE AND CLAIM OF EXPENDITURE WAS DISALLOWED AND ADDED BACK TO THE INCOME OF THE ASSESSEE. ON APPEAL, BY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SWADESHI COTTON MILLS CO. LTD. V. CIT 233 ITR 199, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO ALLOW THE COMPENSATORY PART OF THE DAMAGES WITH REGARD TO THE SCHEME OF THE EMPLOYEES PROVIDENT FUND ACT AND ALLOW THE ELIGIBLE DEDUCTION UNDER SECTION 37(1) OF THE ACT. IN THE CASE OF SWADESHI COTTON MILLS CO. LTD. V. CIT (SUPRA), THE HONBLE SUPREME COURT HAS HELD THAT THE AMOUNT OF DAMAGES FOR THE DELAYED PAYMENT OF CONTRIBUTION UNDER SECTION 14B OF THE EMPLOYEES PROVIDENT FUND ACT, COMPRISES BOTH THE ELEMENT OF LEVY OF PENALTY AS WELL AS COMPENSATORY PAYMENT AND THAT IS FOR THE AUTHORITY UNDER THE ACT TO DECIDE THE EXTENT TO WHICH IT IS COMPENSATORY. ON VERIFICATION OF THE ASSESSMENT ORDER, THE LD. CIT(A) HAS OBSERVED THAT THE ASSESSING OFFICER HAS NOT CARRIED OUT SUCH BIFURCATION IN VIEW OF THE JUDGEMENT OF THE HONBLE SUPREME COURT. ACCORDINGLY, AFTER CONSIDERING THE STATE GOVERNMENT ORDER, M.P. NO. 84/CHNY/19 3 DETAILS OF INTEREST PAID, WHICH WAS NOTHING BUY COMPENSATORY IN NATURE, THE ASSESSING OFFICER PASSED ORDER GIVING EFFECT TO THE ORDER OF THE LD. CIT(A) AND ALLOWED THE CLAIM OF DAMAGES FOR REMITTANCE OF PENSION FUND TRUST. THE ASSESSEE HAS NOT FILED ANY ADDITIONAL EVIDENCE WARRANTING THE LD. CIT(A) CALL FOR REMAND REPORT FROM THE ASSESSING OFFICER. SINCE THE ASSESSMENT ORDER SUFFERED BY THE JUDGEMENT OF THE HONBLE SUPREME COURT AND THE ASSESSING OFFICER WAS REQUIRED TO ASSESS THE CORRECT INCOME OF THE ASSESSEE, THE TRIBUNAL FIND NO ERROR IN THE APPELLATE ORDER, THEREBY, THE APPEAL OF THE REVENUE WAS HELD TO BE NOT MAINTAINABLE, WHICH WAS DULY CONCEDED BY THE LD. DR APPEARED DURING THE COURSE OF APPEAL HEARING. BEING SO, THE PRESENT MISCELLANEOUS PETITION FILED BY THE REVENUE HAS NO MERITS AND THUS, THE MP STANDS DISMISSED. 7. IN THE RESULT, THE M.P. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 26 TH JULY, 2019 AT CHENNAI. SD/- SD/- (INTURI RAMA RAO) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 26.07.2019 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.