DCIT, New Delhi v. M/s Samtex Fashions Ltd., New Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO. 2814/DEL/2010 ASSESSMENT YEAR: 2006-07 DCIT CIRCLE 7(1) C.R. BLDG. I.P. ESTATE NEW DELHI. VS. SAMTEX FASHIONS LTD. G-321 CHIRAG DELHI. NEW DELHI. AABCS3233M (APPELLANT) (RESPONDENT) APPELLANT BY : KISHORE B. SR. DR RESPONDENT BY: PRAKASH NARAIN ADV. O R D E R PER I.P. BANSAL J.M. THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DI RECTED AGAINST THE ORDER OF CIT(A) DATED 15.03.10 FOR A.Y. 2006-07. GROUNDS OF APPEAL READ AS UNDER: - 1. LD. CIT(A) ERRED IN LAW AND ON THE FACTS AND C IRCUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS. 10 06 110/- MADE BY THE AO U/S 36(1)(VA) OF THE I.T. ACT BEING LATE PAYMENT OF THE EMPLOYEES CONTRIBUTION TO PF/ESI. 2. THE APPELLANT CRAVES TO AMEND MODIFY ALTER ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. THE RELEVANT PARTICULARS REGARDING THE BELATED P AYMENT OF RS. 10 06 110/- ARE TABULISED IN THE ORDER OF AO AS WEL L AS IN THE ORDER OF CIT(A) FOR THE SAKE OF CLARITY THE SAME IS BEING REPRODUCED BE LOW: - CONTRIBUTION AMOUNT DUE DATE PAID 2 ITA NO. 2814/DEL/2010 RECEIVED PF 244168/- 257040/- 281528/- 15/5/05 15/7/05 15/11/05 7/6/2005 23/8/05 28/11/05 ESI 40 544/- 40 476/- 42 975/- 51 159/- 48 219/- 21/5/05 21/6/05 21/7/05 21/8/05 21/11/05 7/6/05 27/7/05 23/8/05 9/9/05 28/11/05 TOTAL 10 06 110/- 3. THE DUE DATE OF FILING THE RETURN IN THE PRESENT CASE AS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE IS 30 TH SEPTEMBER 2006. LD. CIT(A) HAS DELETED THE DISALLOWANCE ON THE GROUND THAT ALL THE PAYMENT S HAVE BEEN MADE BEFORE THE DUE DATE OF FILING THE RETURN AS PRESCRIBED U/S 139(1). 4. IN THIS FACTUAL BACKDROP WE HAVE HEARD BOTH THE PARTIES AND FOUND THAT THIS ISSUE IS NOW FULLY COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306. IT WAS HELD BY HONBLE SUPREME COURT THAT THE OMISSION OF SECOND PROVISO T O SEC. 43B OF THE INCOME TAX ACT 1961 BY THE FINANCE ACT 2003 OPERATED R ETROSPECTIVELY W.E.F. 1 ST APRIL 1988 AND NOT PROSPECTIVELY FROM 1 ST APRIL 2004. THE OMISSION OF THE SECOND PROVISO TO SEC. 43B OF THE INCOME TAX ACT 1961 BY THE FINANCE ACT 2003 OPE RATED RETROSPECTIVELY W.E.F 1 ST APRIL 1988 AND NOT PROSPECTIVELY FROM 1 ST APRIL 2004. EARLIER UNDER THE SECOND PROVISO TO SEC. 43B AS AME NDED BY THE FINANCE ACT 1989 ASSESSES WERE ENTITLED TO DE DUCSTION ONLY IF THE CONTRIBUTION STOOD CREDITED ON OR BEFOR E THE DUE DATE GIVEN IN THE PROVIDENT FUNDS ACT. THIS CREATE D FURTHER DIFFICULTIES AND ON A REPRESENTATION MADE TO THE FI NANCE MINISTRY ONE MORE AMENDMENT WAS MADE BY THE FINANCE ACT 2003. THOUGH THIS AMENDMENT WAS MADE APPLICAB LE 3 ITA NO. 2814/DEL/2010 WITH EFFECT FROM 1 ST APRIL 2004 THE AMENDMENT WAS CURATIVE IN NATURE AND APPLIED RETROSPECTIVELY W.E.F. 1 ST APRIL 1988. WHEN A PROVISO IN A SECTION IS INSERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE THE PROVISO WHICH SUPPLIES AN OBVIOUS OMI SSION THEREIN IS REQUIRED TO BE READ RETROSPECTIVELY IN O PERATION PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHO LE. 5. IN THIS VIEW OF THE SITUATION AS ALL THE PAYMEN TS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING THE RETURN WE FOUND NO INFI RMITY IN THE ORDER OF CIT(A) VIDE WHICH THE IMPUGNED ADDITION HAS BEEN DELETED. WE D ECLINE TO INTERFERE. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.8.10 (SHAMIM YAHYA) ACCOUNTANT MEMBER (I.P. BANSAL) JUDICIAL MEMBER DATED: 13.8.10 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR