ITO 4(2)(4), MUMBAI v. MUTHA FOUNDERS P. LTD, MUMBAI

I.T.A NOS. 2714 & 2715/ MUM/2010 MUTHA FOUNDERS P. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH MUMBAI. [ CORAM: PRAMOD KUMAR AM AND R.S.PADVEKAR JM ] I.T.A NOS. 2714 & 2715/ MUM/2010 ASSESSMENT YEARS: 2000-2001 &2003-04 I.T.O 4(2)(4) .. APPELLANT 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI. VS MUTHA FOUNDERS P. LTD. . RESPONDEN T 121 VITHALWADI 1 ST FLOOR KALBADEVI ROAD MUMBAI PA NO.AAACM 3091 N APPEARANCES: SUNIL KUMAR SINGH FOR THE APPELLANT G.P. MEHTA FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THESE APPEALS THE ASSESSING OFFICER HAS CALLED INTO QUESTION CORRECTNESS OF CIT(A)S SEPARATE ORDERS DATED 20 TH JANUARY 2010 AND 21 ST JANUARY 2011 IN THE MATTER OF ASSESSMENT UNDER SECTION 143 (3) R.W.S 147 OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT YEARS 2000-2001 & 20 03-04. 2. THE ONLY ISSUE RAISED IN BOTH THE APPEALS IS AGA INST CIT(A)S DIRECTION TO ALLOW DEDUCTION ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO P F PAID WITHIN THE GRACE PERIOD. I.T.A NOS. 2714 & 2715/ MUM/2010 MUTHA FOUNDERS P. LTD. 2 3. SINCE A COMMON ISSUE IS RAISED WE TAKE UP THE A PPEAL FOR THE ASSESSMENT YEAR 2000-2001. 3. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS PAID RS. 8 31 366 TOWARDS EMPLOYERS AND EMPLOY EES CONTRIBUTION TO PROVIDENT FUND AFTER THE DUE DATES FOR THE MONTHS OF MAY 199 9 JUNE 99 AUGUST 99 OCTOBER 99 AND NOVEMBER 99. HE ALSO NOTICED THAT THE ESI C CONTRIBUTION OF RS. 89 049 FOR THE MONTHS OF OCTOBER AND NOVEMBER 1999 HAS BEEN P AID BEYOND THE DUE DATE. HE ALSO NOTICED THAT LABOUR WELFARE FUND OF RS. 1026 AND GROUP GRATUITY FUND OF RS. 1 88 395 HAS BEEN PAID BEYOND THE DUE DATE. ACCOR DINGLY HE DISALLOWED RS. 6 92 322 TOWARDS EMPLOYERS CONTRIBUTION U/S. 43B AN D RS.4 17 514 TOWARDS EMPLOYEES CONTRIBUTION U/S.36(1)(VA) OF THE ACT A ND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE CARRIED THE M ATTER IN APPEAL BEFORE THE CIT (A). THE CIT (A) DIRECTED THE ASSESSING OFFICER T O EXAMINE THE DATES OF PAYMENTS AND ALLOW DEDUCTION WITH RESPECT TO PAYMENT MADE WI THIN THE TIME LIMIT OF FILING THE RETURN OF INCOME U/S.139(1) U/S.43B AND THE DEDUCTI ON U/S.36(12)(VA) WITH RESPECT TO PAYMENTS MADE WITHIN THE GRACE PERIOD. AGGRIEVE D THE ASSESSING OFFICER IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING LD COUNSEL FOR THE ASSES SEE PLACED BEFORE US COPY OF DECISION DATED 19.11.2010 OF A CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2000-2001 AND 2003-04 WHEREIN ON SAME SET OF FACTS THE TRIBUNAL HAS ALLOWED THE ASSESSEES APPE AL. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD AS WELL AS THE DECISION OF THE TRIBUNAL IN A SSESSEES CASE FOR THE ASSESSMENT YEARS 2000-2001 AND 2003-04. WE FIND THAT AGAINST THE ORDER OF THE CIT (A) THE ASSESSEE HAD PREFERRED APPEAL BEFORE THE TRIBUNAL ON SAME ISSUE WHICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE RELEVANT POR TION OF THE ORDER IS EXTRACTED BELOW: I.T.A NOS. 2714 & 2715/ MUM/2010 MUTHA FOUNDERS P. LTD. 3 8.COMMON GROUND NO.3 IN BOTH THE APPEALS IS AGAINS T THE SUSTENANCE OF ADDITION U/S.43B R.W.S. 36(1)(VA) OF THE ACT. 9. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE ARE OF THE OPINION THAT THE ISSUE INVOLVE D IN THE PRESENT CASE IS NO MORE RES NTEGRA AND IS COVERED BY THE DECISION OF T HE HONBLE SUPREME COURT IN CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) WHEREIN THEIR LORDSHIPS HAVE CONSIDERED THE APPLICABILITY OF SECT ION 36(1)(VA) READ WITH SECTION 2(24)(X) AS WELL AS 43B OF THE ACT AND IT H AS BEEN HELD THAT THE AMENDMENT WAS CURATIVE IN NATURE AND APPLICABLE RET ROSPECTIVELY WITH EFFECT FROM APRIL 1 1988. 10. IN CIT VS. AIMIL LTD. (2010) 321 ITR 508 (DEL.) THEIR LORDSHIPS WHILE OBSERVING THAT THE ASSESSEE HAS DEPOSITED EMPLOYER S CONTRIBUTION AS WELL AS EMPLOYEES CONTRIBUTION TOWARDS PF AND ESIC AFTER T HE DUE DATE AS PRESCRIBED UNDER THE RELEVANT ACT/RULE BUT BEFORE T HE DUE DATE FOR FILING THE RETURN UNDER THE INCOME TAX ACT HAVE HELD THAT NO D ISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS OF SEC.43B AS AMENDE D BY THE FINANCE ACT 2003. 11. IN VIEW OF THE ABOVE LEGAL POSITION AND IN ABSE NCE OF ANY CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE WE ARE OF THE VIEW THAT THE PAYMENTS OF PF ESIC LABOUR WELFARE FUND AND GROUP GRATUITY FUND MADE BY THE ASSESSEE AFTER THE DUE DATE AS PRESCRIBED UN DER THE RELEVANT ACT/RULE BUT BEFORE THE DUE DATE OF FILING OF RETURNS UNDER THE INCOME TAX ACT ARE ALLOWABLE AND ACCORDINGLY WE DIRECT THE ASSESSING O FFICER TO ALLOW THE SAME AFTER DUE VERIFICATION. THE COMMON GROUND TAKEN BY THE ASSESSEE IS THEREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBU NAL IN ASSESSEES OWN CASE (SUPRA) WE DISMISS THE APPEALS FILED BY THE REVENU E. 9. IN THE RESULT THE APPEALS FILED BY THE REVENUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARI NG I.E. ON 22 ND FEBRUARY 2011 SD/- (R.S.PADVEKAR ) (JUDICIAL MEMBER) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI DATED 22 ND FEBRUARY 2011 I.T.A NOS. 2714 & 2715/ MUM/2010 MUTHA FOUNDERS P. LTD. 4 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS) 8 MUMBAI 4. COMMISSIONER OF INCOME TAX 4 MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH F MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI I.T.A NOS. 2714 & 2715/ MUM/2010 MUTHA FOUNDERS P. LTD. 5