KARROX TECHNOLOGIES LTD, MUMBAI v. ITO 10(2)(2), MUMBAI

ITA 5952/MUM/2010 | 2006-2007
Pronouncement Date: 15-02-2012 | Result: Allowed

Appeal Details

RSA Number 595219914 RSA 2010
Assessee PAN AAACK0376Q
Bench Mumbai
Appeal Number ITA 5952/MUM/2010
Duration Of Justice 1 year(s) 6 month(s) 16 day(s)
Appellant KARROX TECHNOLOGIES LTD, MUMBAI
Respondent ITO 10(2)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 15-02-2012
Date Of Final Hearing 09-02-2012
Next Hearing Date 09-02-2012
Assessment Year 2006-2007
Appeal Filed On 29-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO.5952/MUM/2010 (ASSESSMENT YEAR: 2006-07) KARROX TECHNOLOGIES LIMITED 7 TH FLOOR BHAVESHWAR ARCADE LBS MARG GHATKOPAR (W) MUMBAI -400 086 ...... APPELLANT VS INCOME-TAX OFFICER -10(2)(3) AAYAKAR BHAVAN MUMBAI -400 020 ..... RESPONDENT PAN: AAACK 0376 Q APPELLANT BY: SHRI BHUPENDRA SHAH RESPONDENT BY: SHRI V.V. SHASTRI DATE OF HEARING: 09.02.2012 DATE OF PRONOUNCEMENT: 15 .02.2012 O R D E R PER R.S. PADVEKAR JM : IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A)-21 MUMBAI DATED 08.03.2010 FOR THE A.Y. 2006-07. THE ONLY ISSUE IS THE DISALLOWANCE MADE U/S.36(1)(V A) AMOUNTING TO ` 10 54 929/- IN THE PAYMENT OF PF WHICH WAS TREATED AS INCOME FROM SECTION 2(24)(10) OF THE ACT. THIS APPEAL IS TIME BARRED BY 68 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONONI NG THE DELAY. IN THE APPLICATION THE ASSESSEE HAS STATED AS UNDER: 1. THAT THE 1 ST APPELLATE ORDER FOR A.Y. 2006-07 WAS SERVED TO US ON 23.03.2010. WE WERE REQUIRED TO FILE 2 ND APPEAL BEFORE ITAT ON OR BEFORE 23.05.2010. HOWEVER THE ACCOUNTANT TO WHOM THE WORK OF FILING OF APPEAL WAS ASSIGNED WENT OUT OF TOWN FOR 1 MONTH DURING VACATI ON AND ITA 5952/M/2010 KARROX TECHNOLOGIES LIMITED 2 THEREFORE COULD NOT CONTRACT OUR COUNSEL. WE ARE N OT HAVING ANY PERSON IN HOUSE CAPABLE TO HANDLE THIS APPEAL I N HOUSE. MOREOVER OUR REGULAR CA DID NOT INFORM US TO AVAIL OF OUR RIGHTS & DID NOT GUIDE ME WHETHER 2 ND APPEAL CAN STILL BE FILED OR NOT. WHEN RECOVERY STARTED WE F ELT MORE SERIOUSNESS OF THE NON FILING BY OUR THEN C.A. BE THAT IT MAY THEREAFTER WE APPROACHED ANOTHER COUNSEL FOR ADVISING US ON THE REMEDY. THEREAFTER HE STARTED C ULLING OUT DATA OF OUR CASE. HENCE THE DELAY BY US WAS NO T INTENTIONAL. THUS THE LATE FILING WAS DUE TO THE R EASONS TOTALLY BEYOND OUR CONTROL. LOOKING AT THE FACT TH AT OUR ERSTWHILE COUNSEL HAS NOT TAKEN NECESSARY STEPS PL EASE TAKE A LENIENT VIEW AND CONDONE THE DELAY. 2. THIS DELAY IS WHOLLY UNINTENTIONAL & BEYOND THE CONTROL OF THE APPELLANT. THE WORD SUFFICIENT CAUSE HAS BEE N CONSTRUED QUITE LIBERALLY IN CASE OF R.J. PRATAP SI NGH [100 ITR 698 S.C.J AND S.N. GHORPADE [148 ITR 54 MUMBAI] . 2. WE HAVE HEARD THE PARTIES. THERE IS SUFFICIENT CAUSE FOR CONDONING THE DELAY OF 63 DAYS. LD. D.R. ALSO DID NOT SERIOUSLY OPPOSE FOR THE CONDONING THE DELAY IN FILING THIS A PPEAL. WE ACCORDINGLY CONDONE THE DELAY AND TAKE THE APPEAL F OR HEARING. 3. BRIEFLY STATED THE FACTS ARE AS UNDER. THE ASSE SSEE COMPANY IS IMPARTING COMPUTER EDUCATION. IT WAS NOTICED BY TH E A.O. THAT THE ASSESSEE FAILED TO PAY THE CONTRIBUTIONS TO THE EMP LOYEES CONTRIBUTION TO P.F. WITHIN THE DUE DATE PRESCRIBED UNDER THE EM PLOYEES PROVIDENT FUND ACT. THE A.O. HAS GIVEN CHART IN RESPECT OF D ELAY IN DAYS FOR DEPOSITING PAYMENTS WITH GOVT A/C. THE A.O. THERE FORE MADE DISALLOWANCE OF RS.10 54 929/- BY DISALLOWANCE CLAI MED U/S.36(1)(VA) OF THE ACT. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT (A) BUT WITHOUT SUCCESS. ITA 5952/M/2010 KARROX TECHNOLOGIES LIMITED 3 4. WE HAVE HEARD THE PARTIES AND ON PERUSAL OF THE ORDER OF THE LD. CIT (A) WE FIND THAT THOUGH THERE IS A DELAY ALL TH E PAYMENTS MADE DURING THE FINANCIAL YEAR 2005-06 EXCEPT THE PAYMEN T RELATED TO THE MONTH OF MARCH 2006 WHICH WAS PAID ON 24.04.2006 W ITH THE DELAY OF 9 DAYS. THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE ITAT MUMBAI IN THE CASE OF PINK PEN PVT. LTD. VS. ITO IN ITA NO.6847/MUM/2008 DATED 28.01.2010. IN THE SAID CAS E THE TRIBUNAL HAS HELD AS UNDER:- 10. THE NEXT ISSUE IS DISALLOWANCE OF EMPLOYEES CO NTRIBUTION TO PF AND ESIC OF ` 43 721/-. THE SHORT CONTROVERSY BEFORE US IS IN RESPECT OF THE PAYMENT OF THE EMPLOYEES CONTRIBU TION TO P.F./E.S.I.C BEYOND THE GRACE PERIOD WHICH WAS RELA TING TO THE MONTH OF FEBRUARY. THE LD. COUNSEL RELIED ON THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S. ALOM EXTRUSION LTD. 319 ITR 306. THE A.O. MADE THE DISALLOWANCE U/S. 36(1)(VA) AS HE WAS OF THE OPINION THAT THE EMPLOYE ES CONTRIBUTION TO PF/ESIC EVEN IF MADE BEFORE FILING OF THE RETURN OF INCOME IS NOT COVERED U/S. 43B OF THE I.T. ACT. IN THE CASE OF ALOM EXTRUSION LTD.(SUPRA) THE ISSUE BEFORE THEIR LORDS HIP WAS WHETHER THE OMISSION OF SECOND PROVISO TO SECTION 43B OF THE I.T. ACT 1961 BY THE FINANCE ACT 2003 OPERATED W.E.F. 1 .2.2004 OR WHETHER IT OPERATED RETROSPECTIVELY W.E.F. 1.4.1988 . IN THE SAID CASE ALSO THE ISSUE WAS CONCERNING THE CONTRIBUTIO N PAYABLE BY THE EMPLOYER TO THE P.F/SUPERANNUATION FUND OR ANY OTHER FUND OF WELFARE OF THE EMPLOYEES. IN OUR OPINION NOW TH E ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSION LTD. (S UPRA). WE THEREFORE ALLOW THE GROUND TAKEN BY THE ASSESSEE A ND DELETE THE ADDITION. 5. WE ACCORDINGLY FOLLOWING THE DECISION OF THE CO -ORDINATE BENCH OF THE TRIBUNAL ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE IN RESPECT OF THE DELAYED PAYMENT OF THE EMPLOYEES CONTRIBUTIO N TO P.F. OF RS.10 54 929/-. ITA 5952/M/2010 KARROX TECHNOLOGIES LIMITED 4 6. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 5TH FEBRUARY 2012. SD/- ( J. SUDHAKAR REDDY ) ACCOUTANT MEMBER SD/- ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI DATE: 15TH FEBRUARY 2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-21 MUMBAI. 4) THE CIT-M.C.-10 MUMBAI. 5) THE D.R. H BENCH MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T. MUMBAI *CHAVAN