The ITO, Ward-1(3),, Ahmedabad v. Atmaram Maneklal Industries Ltd.,, Ahmedabad

MA 153/AHD/2010 | 2003-2004
Pronouncement Date: 07-01-2011 | Result: Dismissed

Appeal Details

RSA Number 15320524 RSA 2010
Assessee PAN AACCA3038R
Bench Ahmedabad
Appeal Number MA 153/AHD/2010
Duration Of Justice 6 month(s) 7 day(s)
Appellant The ITO, Ward-1(3),, Ahmedabad
Respondent Atmaram Maneklal Industries Ltd.,, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 07-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 07-01-2011
Assessment Year 2003-2004
Appeal Filed On 30-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI T.K. SHARMA JUDICIAL MEMBER AND SHRI D.C. AGRAWAL ACCOUNTANT MEMBER DATE OF HEARING : 10/12/2010 DRAFTED ON: 16 /12/2010 MA NO.153/AHD/2010 [ ARISING OUT OF ITA NO.498/AHD/2007 ] ASSESSMENT YEAR : 2003-04 INCOME TAX OFFICER WARD-1(3) AHMEDABAD (ORIGINAL APPELLANT) VS. ATMARAM MANEKLAL INDS. LTD. 906 AKRUTI NR.STADIUM CIRCLE NAVRANPGURA AHMEDABAD (ORIGINAL RESPONDENT) PAN/GIR NO. : AACCA 3038 R ( APPLLICANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI K.I. THAKKAR A.R. REVENUE BY: SHRI M.MATHIVANAN D.R. O R D E R PER SHRI D.C.AGRAWAL ACCOUNTANT MEMBER: AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO.498/AH D/2007 PASSED FOR ASSESSMENT YEAR 2003-04 IN THE CASE OF ITO VS. M/S.ATMARAM MANEKLAL INDUSTRIES LTD. PRONOUNCED ON 13/08/2009 THE REVENUE HAS FILED FOLLOWING GROUND IN ITS MISCELLANEOUS APPLICA TION. 1. THAT IN THIS CASE THE ASSESSING OFFICER MADE AN AD DITION OF RS.4 88 870/- AS INCOME U/S.2(24)(X) R.W.S. 36(1) ( VA) OF THE I.T. ACT AS THE ASSESSEE FAILED TO REMIT THE PROVID ENT FUND CONTRIBUTION RECEIVED FROM THE EMPLOYEES EVEN AFTER THE EXPIRY OF GRACE PERIOD ALLOWED UNDER THAT ACT. MA NO.153/AHD/2010 (ARISING OUT OF ITA NO.498/AHD/2007) ASST.YEAR 2003-04 - 2 - 2. THAT IT IS PERTINENT TO POINT OUT THAT THE ASSESSIN G OFFICER HAS ALSO MADE A DISALLOWANCE OF RS.4 88 870/- U/S.43B O F THE I.T. ACT AS THE ASSESSEE FAILED TO REMIT THE EMPLOYERS CONTRIBUTION IN TIME. 3. THAT THE LD. CIT(A) DELETED THE ADDITION OF RS.4 88 870/- MADE BY THE ASSESSING OFFICER U/S.2(24)(X) R.W.S. 36(1) (VA) OF THE ACT AS WELL AS DELETED THE DISALLOWANCE OF RS.4 88 870/ - U/S.43B OF THE I.T. ACT MADE BY THE ASSESSING OFFICER ON ACCOU NT OF THE FACT THAT THE ASSESSEE FAILED TO REMIT THE EMPLOYER S CONTRIBUTION IN TIME TREATING BOTH THE ADDITIONS AN D DISALLOWANCES UNDER THE HEAD 43B OF THE I.T. ACT. 4. THAT THE DEPARTMENT FILED AN APPEAL AGAINST THE ORD ER OF THE LD. CIT(A) TAKING GROUND NO.1 AGAINST DELETION OF A DDITION OF RS.4 88 770/- MADE BY THE ASSESSING OFFICER U/S.2(2 4)(X) R.W.S. 36(1)(VA) OF THE I.T. ACT AND GROUND NO.2 BEING DEL ETION OF DISALLOWANCE OF RS.4 88 870/- MADE BY THE ASSESSING OFFICER U/S.43B OF THE I.T. ACT. 5. THAT THOUGH THE HON'BLE ITAT IN PARA 2 AND 3 REFERR ED VARIOUS JUDGMENTS WHICH CONFIRMED THE ADDITION MADE BY THE AOS U/S.2(24)(X) OF THE I.T. ACT IN FAVOUR OF THE DEPAR TMENT YET IN THE OPERATIVE PART OF THE ORDER THERE IS AN AMBIGU ITY THAT THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFI CER WITH A DIRECTION TO FIND OUT WHETHER THERE IS ANY DOUBLE D EDUCTION AT (I) WHEN SALARY PAYMENT IS MADE TO THE EMPLOYEES AN D (II) WHEN MONEY IS TRANSFERRED TO PF AUTHORITIES. 6. THAT THE ISSUE IS VERY CLEAR THAT THE ASSESSEE FAIL ED TO REMIT THE EMPLOYEES CONTRIBUTION EVEN AFTER THE GRACE PERIOD ALLOWED BY THAT ACT THE SAME IS TREATED AS INCOME IN VIEW OF THE PROVISIONS OF SECTION 2(24)(X) OF THE I.T. ACT. PRAYER IT IS THEREFORE PRAYED THAT THE HON'BLE ITAT IS R EQUESTED TO KINDLY CONSIDER THE ABOVE FACTS AND AMEND THE ORDER ACCORDINGLY. MA NO.153/AHD/2010 (ARISING OUT OF ITA NO.498/AHD/2007) ASST.YEAR 2003-04 - 3 - 2. THE GIST OF MISCELLANEOUS APPLICATION IS THAT TH E TRIBUNAL HAS INCORRECTLY RESTORED THE MATTER TO THE FILE OF ASSE SSING OFFICER FOR VERIFICATION AS PER ITS ORDER CONTAINED IN PARAGRAP H NO.4 AS UNDER:- 4. RESPECTFULLY FOLLOWING THE ABOVE ORDER WE REST ORE THESE ISSUES TO THE FILE OF ASSESSING OFFICER TO FIND OUT WHETHER THERE IS ANY DOUBLE DEDUCTION (I) WHEN SALARY PAYMENT IS MA DE TO THE EMPLOYEES AND (II) WHEN MONEY IS TRANSFERRED TO PF AUTHORITIES. IF NO DOUBLE DEDUCTION IS CLAIMED THEN DEDUCTION A TLEAST ONCE SHOULD BE ALLOWED IF PAID BEFORE FILING OF THE RETU RN AS PER SECTION 43B OF THE I.T. ACT 1961. FOR THIS VERIFICATION WE RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER. THER EFORE GROUND NOS.1 & 2 ARE TREATED AS ALLOWED FOR STATISTICAL PU RPOSES. 3. ACCORDING TO REVENUE SINCE PAYMENTS TO PF WAS N OT MADE DURING GRACE PERIOD AND ALL THE DATES REGARDING PAYMENT AR E ON RECORD TRIBUNAL OUGHT TO HAVE DECIDED IN FAVOUR OF THE REVENUE. 4. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. IN OUR CONSIDERED VIEW THERE IS NO CASE FOR RECTIFICATION U/S.254(1) OF THE I.T.ACT. REASONS ARE THAT ALL THE PAYMENTS TO PF ACCOUNT WHETHER EMP LOYEES CONTRIBUTION OR EMPLOYERS CONTRIBUTION WERE DONE BEFORE THE DUE DATE OF FILING OF THE RETURN AS MENTIONED IN PARAGRAPH NO.2 OF TRIBUNALS ORDER. TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO VERIFY THAT NO DO UBLE DEDUCTION IS CLAIMED ONCE WHEN SALARY PAYMENT IS MADE TO THE EM PLOYEES ANOTHER WHEN MONEY IS TRANSFERRED TO PF AUTHORITIES. IN ANY CASE THIS ISSUE IS NOW DECIDED BY THE COURTS IN FAVOUR OF THE ASSESSEE IF PAYMENT IS MA NO.153/AHD/2010 (ARISING OUT OF ITA NO.498/AHD/2007) ASST.YEAR 2003-04 - 4 - ACTUALLY DONE BEFORE DUE DATE OF FILING OF THE RETU RN WHICH IN THIS CASE HAS BEEN DONE. 5. THE LATEST JUDGEMENT IS IN THE CASE OF CIT VS. A LOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC). THEREFORE THERE IS NO REASON TO TAKE ANY DIFFERENT VIEW THAT WHAT HAS BEEN TAKEN BY THE TRIB UNAL IN ABOVE REFERRED ORDER. IN ANY CASE WHAT THE REVENUE IS SEEKING I S IN FACT REVIEWING THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE AS HELD BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MCDOWEL L & CO.LTD. (2009) 310 ITR 215(KARN.) IT HAS BEEN HELD THEREIN THAT- RECONSIDERATION OF . (I) THE PRINCIPLES OF SUPERIOR COURT TO THE F ACTS OF THE CASE (II) THE FINDINGS RECORDED AND (III) APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO THE FACTS OF THE CASE WOULD AMOUNT TO REVIEW OF THE EARLIER ORDER ON THE MERITS AND NOT ANY RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. THIS IS ONLY A REVIEW OF THE EARLIER ORDER. 5. SIMILAR VIEW HAS BEEN EXPRESSED BY THE HON'BLE PUNJAB & HARYANA IN THE CASE OF UPLAKSH METAL INDS. VS. CIT CIT (200 9) 309 ITR 61 (P&H) BHARAT DRUG STORES VS. CIT (2007) 29 5 ITR 120 (GAUHATI) AND OF CIT VS. ITAT (2007) 293 ITR 118(DELHI). 6. IN VIEW OF ABOVE WE HOLD THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS MISCONCEIVED AND IS REJECTED. MA NO.153/AHD/2010 (ARISING OUT OF ITA NO.498/AHD/2007) ASST.YEAR 2003-04 - 5 - 7. IN THE RESULT MISCELLANEOUS APPLICATION IS DISM ISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 07/ 01 /2011. SD/- SD/- ( T.K. SHARMA ) ( D.C. AGRAWAL ) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD; DATED 07/ 01 /2011 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-I AHMEDABAD 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD 1. DATE OF DICTATION..16/12/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/12/2010 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S07/1/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 07/1/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER