ITO, Wd -2, Satara, Satara V. Shreyas Hotels, Mahabaleshwar

MA 99/PUN/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6740 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 13-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K AMBASTHA
• Section: 43B; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER M.A. NO. 99/PN/2009 ARISING OUT OF I.T.A. NO. 1119/PN/2005 A.Y. 2001-02 I.T.O. WARD 2, SATARA APPLICANT VS. SHREYAS HOTELS OPP. S.T. STAND, MAHABALESHWAR DIST. SATARA PAN AAVFS 4961 M RESPONDENT APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SHRI S.K. AMBASTHA ORDER PER SHAILENDRA KUMAR YADAV, JM IN THIS MISCELLANEOUS PETITION FILED BY THE REVENUE ARISING OUT OF ORDER OF THE TRIBUNAL DATED 2-11-200 7 PASSED IN ITA NO. 1119/PN/2005 FOR A.Y. 2001-02, THE REVEN UE HAS SUBMITTED AS UNDER: THE HONBLE BOMBAY HIGH COURT IN THE JUDGMENT GIVEN ON 8-10-2007 IN THE CASE OF CIT VS. GODAVARI MANNAI) SAH. SAKHAR KARKHANA LTD., HAVE CONSIDERED THE SIMILAR ISSUE AND HAS HELD THAT PRIOR TO ASSESSMENT YEAR 2004-05, THE PAYMENT TOWARDS PF MADE BEYOND THE DUE DATE PRESCRIBED UNDER P.F. ACT COULD NOT BE ALLOWED AS DEDUCTION NOTWITHSTANDING T HE FACT THAT PAYMENT WAS MADE BEFORE FILING THE RETURN . IN THE SAID DECISION THE HONBLE BOMBAY HIGH COURT, BOMBAY HAS HELD THAT THE AMENDMENT MADE BY THE FINANCE ACT 2003 W.E.F. 1-4-2004 T OMIT THE SECOND PROVISO TO SEC. 43B OF THE ACT WAS NOT CURATIVE AND CONSEQUENTLY IT CANNOT BE SAID THAT THE AMENDMENT I S 2 MA NO. 99/PN/09 SHREYAS HOTELS A.Y. 2001-02 RETROSPECTIVE. CONSIDERING THE FACTS STATED CIT II I PUNE HAS VIDE LETTER NO. PN/CIT- III/JUDL/APPEAL/2008-09/947 DATED 10-6-2008 (COPY ENCLOSED) DIRECTED TO MOVE A MISCELLANEOUS PETITION FOR KIND CONSIDERATION OF HONBLE ITAT PUNE. 2. IN VIEW OF THE ABOVE, THE LEARNED DEPARTMENT REPRESENTATIVE HAS SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 2 ND NOVEMBER 2007 PASSED IN ITA NO. 1119/PN/2005 BE MODIFIED ACCORDINGLY. ON THE OTHER HAND, THE LE ARNED COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) AND SUBMITTED THAT THE PRESENT MISCELLANEOUS APPLICATIO N FILED BY THE REVENUE IS RENDERED INFRUCTUOUS IN VIEW OF T HE SAID JUDGMENT OF HONBLE SUPREME COURT. 3. HAVING CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT H ONBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD. ( SUPRA) HAS HELD AS UNDER: THE OMISSION OF THE SECOND PROVISO TO SECTION 43B OF THE ACT BY THE FINANCE ACT 2003, OPERATED, RETROSPECTIVELY, W.E.F. 1-4-1988 AND NOT PROSPECTIV ELY FROM 1-4-2004. EARLIER UNDER THIS SECOND PROVISO TO SECTION 43B AS AMENDED BY THE FINANCE ACT 1989 ASSESSEES WERE ENTITLED TO DEDUCTION ONLY IF THE CONTRIBUTION STOO D CREDITED ON OR BEFORE THE DUE DATE GIVEN IN THE PROVIDENT FUNDS ACT. THIS CREATED FURTHER DIFFICUL TIES AND ON A REPRESENTATION MADE TO THE FINANCE MINISTR Y ONE MORE AMENDMENT WAS MADE BY THE FINANCE ACT 2003. THOUGH THIS AMENDMENT WAS MADE APPLICABLE 3 MA NO. 99/PN/09 SHREYAS HOTELS A.Y. 2001-02 W.E.F. APRIL 1, 2004, THE AMENDMENT WAS CURATIVE IN NATURE AND APPLIED RETROSPECTIVELY W.E.F. APRIL 1, 1988. WHEN A PROVISO IN SECTION IS INSERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE, THE PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION THEREIN IS REQUIRED TO BE READ RETROSPECTI VELY IN OPERATION, PARTICULARLY TO GIVE EFFECT TO THE SE CTION AS A WHOLE 4. IN THIS VIEW OF THE MATTER, THE MISCELLANEOUS PE TITION FILED BY THE REVENUE IS RENDERED INFRUCTUOUS AND TH E SAME IS REJECTED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 13 TH JULY 2011 SD/- SD/- (D. KARUNAKARA RAO) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV JUDICIAL MEMBER PUNE DATED THE 13 TH JULY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)- II PUNE 4. THE CIT III PUNE 5. THE D.R, A BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL