HIMSON TEXTILE ENGINEERING IND.PVT.LTD.,, Surat v. THE ACIT.,CIRCLE-1(1),, Surat

ITA 1344/AHD/2008 | 2004-2005
Pronouncement Date: 24-12-2010 | Result: Partly Allowed

Appeal Details

RSA Number 134420514 RSA 2008
Assessee PAN AAACH5825K
Bench Ahmedabad
Appeal Number ITA 1344/AHD/2008
Duration Of Justice 2 year(s) 8 month(s) 8 day(s)
Appellant HIMSON TEXTILE ENGINEERING IND.PVT.LTD.,, Surat
Respondent THE ACIT.,CIRCLE-1(1),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 24-12-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 24-12-2010
Date Of Final Hearing 02-12-2010
Next Hearing Date 02-12-2010
Assessment Year 2004-2005
Appeal Filed On 15-04-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABA D (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON' BLE SHRI A.N. PAHUJA A.M. ) I.T.A. NO. 1344/AHD./2008 ASSESSMENT YEAR : 2004-2005 HIMSON TEXTILES ENG. IND. PVT. LTD. VS- AD DITIONAL COMMISSIONER OF HIRALAL COLONY INCOME TAX CIRCLE- 1 A.K. ROAD SURAT. AAYAKAR BHAVAN MAJURA GATE SURAT. ((PAN : AAACH 5825 K ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R. N. VEPARI. RESPONDENT BY : SHRI PRAVEEN VARMA CIT (D.R.) O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED27-3-2008 OF LD.C.I.T.(A)- I SURAT FOR THE ASSESSMENT YEAR 2004-05 ON THE FOLL OWING GROUNDS :- 1. SECTION 80IB. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. C.I.T.(A)S ERRED IN NOT ALLOWING RELIEF IN RESPECT OF INTEREST INCOME DIVID END INCOME AND RENTAL INCOME BY NOT ADOPTING PRINCIPLE OF NETTING. 2. PF & ESI ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A.) ERRED IN DISALLOWING LATE PAYMENT OF PF & ESI OF RS.1 18 480 /- EVEN THOUGH IT WAS PAID BEFORE DUE DATE OF FILING RETURN. 3. DEDUCTION ON ACCOUNT OF TECHNICAL KNOW-HOW ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A.) ERRED IN NOT ALLOWING 1/6 TH OF TECHNICAL KNOW-HOW OF RS.23 39 250/- FOLLOWING HIS OWN ORDER FOR EARLIER YEAR. 4. INTEREST U/S. 234B / 234D ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A.) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER FOR CHAR GING INTEREST U/S. 234B / 234D. 2. WITH REGARD TO GROUND NO.1 SHRI R. N. VEPARI L D. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE STATED THAT TRIBUNAL IN ASSESSEES OWN CAS E IN ITA NO.2463/AHD/2006 VIDE ORDER DATED 2 19-11-2009 FOR THE ASSESSMENT YEAR 2003-04 HELD THA T THE ASSESSEE IS NOT ENTITLED TO DEDUCTION ON INTEREST AND RENT BUT ONLY ON SCRAP. IN THE ASSESSM ENT YEAR UNDER APPEAL THE CONTROVERSY INVOLVED IS ONLY IN RESPECT OF INTEREST AND DIVIDEND WHICH IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION DATED 19.11.2009 OF TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 IN ITA NO. 2463/AHD/2006. IN VIEW OF THIS THIS GROUND OF APPEAL IS NOT PRESSED. WE ACCORDINGLY DISMISS THIS GROUND AS NOT PRESSED. 4. WITH REGARD TO GROUND NO.2 OF PF AND ESI AMOUNTI NG TO RS.1 18 480/- THE LD. COUNSEL OF THE ASSESSEE POINTED THAT AS PER THE JUDGMENT OF HO N'BLE SUPREME COURT IN THE CASE OF C.I.T. VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) CONT RIBUTION TO P.F. WHICH IS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME IS ALLOWAB LE AS DEDUCTION U/S. 43B OF THE I. T. ACT 1961. HE ACCORDINGLY SUBMITTED THAT FOLLOWING THE JUDGMEN T OF THE HON'BLE SUPREME COURT (SUPRA) ASSESSING OFFICER BE DIRECTED TO ALLOW EMPLOYEES CO NTRIBUTION AMOUNTING TO RS.1 18 480/- WHICH WAS PAID WELL BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 5. ON THE OTHER HAND SHRI PRAVEEN VERMA LD. CIT ( D.R.) APPEARING ON BEHALF OF THE REVENUE POINTED OUT THAT EMPLOYEES CONTRIBUTION IS COVERED BY SECTION 36(1)(VA) ALONE. SECTION 43B(B) SPEAKS ONLY EMPLOYERS CONTRIBUTION. IN RESP ECT OF EMPLOYEES CONTRIBUTION UNDER SECTION 43B HAS NO APPLICATION. HE ACCORDINGLY CONTENDED TH AT THE VIEW TAKEN BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE UPHELD. 6. RIVAL SUBMISSIONS WERE CONSIDERED. WE HAVE CAREF ULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE JUDGMENT OF THE HO N'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). IT IS PERTINENT TO NOTE TH AT THE SAID JUDGMENT OF THE HON'BLE SUPREME COURT IS APPLICABLE IN RESPECT OF EMPLOYERS AS WEL L AS EMPLOYEES CONTRIBUTION. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ALLOW THE EMPLOYEES CONTRIBUTION TO THE EXTENT IT IS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 7. WITH REGARD TO GROUND NO.3 COUNSEL OF THE ASSESS EE SUBMITTED THAT AS PER THE DECISION OF TRIBUNAL IN ITA NO.2463/AHD/2006 THE ASSESSEE IS E NTITLED TO 1/6 TH OF TECHNICAL KNOW-HOW OF RS.80 20 693/-.THE COUNSEL OF THE ASSESSEE ACCORDIN GLY CONTENDED THAT A.O. BE DIRECTED TO ALLOW 1/6 TH OF TECHNICAL KNOW HOW OF RS.23 39 250/- FOLLOWING THE DECISION OF THE TRIBUNAL FOR THE 3 ASSESSMENT YEAR 2003-04 .THE LEARNED D.R. SHRI PRAV EEN VERMA FOR THE REVENUE CONTENDED THAT HE HAS NO OBJECTION FOR GIVING THIS DIRECTION. 8. WE HAVE CAREFULLY GONE THROUGH THE DECISION OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003-04 DATED 19-11-2009 (SUPRA). I N THE ASSESSMENT YEAR 2003-04 THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 35AB AMOUN TING TO RS.80 20 696/- WHICH WAS DISALLOWED BY ASSESSING OFFICER. HOWEVER THE ITAT VIDE ORDER 19-11-2009 (SUPRA) DIRECTED THE A.O. TO ALLOW 1/6 TH OF EXPENDITURE. ON THE BASIS OF SAID DIRECTIONS OF ITAT IN THE ASSESSMENT YEAR 2003-04 WE DIRECT THE ASSESSING OFFICER TO ALLOW 1 /6 TH OF EXPENDITURE. THIS GROUND IS ALLOWED. 9. IN GROUND NO. 4 RELIEF CLAIMED IS CONSEQUENTIAL IN NATURE THEREFORE ASSESSING OFFICER IS DIRECTED TO ALLOW CONSEQUENTIAL RELIEF. 10. IN THE RESULT FOR STATISTICAL PURPOSES THE APP EAL OF THE ASSESSEE IS PARTLY ALLOWED. THE ORDER SIGNED AND PRONOUNCED IN THE COURT ON 24 .12.2010 SD/- SD/- (A.N. PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24 / 12 / 2010 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD. LAHA/ SR. P.S.