MEDIA CONTENT & COMMUNICAITON SERVICES (I) P. LTD, v. ACIT C CIR 6(3),

MA 167/MUM/2010 | 2004-2005
Pronouncement Date: 21-05-2010 | Result: Allowed

Appeal Details

RSA Number 16719924 RSA 2010
Assessee PAN AADCM0507A
Bench Mumbai
Appeal Number MA 167/MUM/2010
Duration Of Justice 2 month(s) 6 day(s)
Appellant MEDIA CONTENT & COMMUNICAITON SERVICES (I) P. LTD,
Respondent ACIT C CIR 6(3),
Appeal Type Miscellaneous Application
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 21-05-2010
Assessment Year 2004-2005
Appeal Filed On 15-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI D.K.AGARWAL JM M.A.NO.167/MUM/2010 (ARISING OUT OF ITA NO.3997/MUM/2008 : ASST.YEAR 20 04-2005) M/S.MEDIA CONTENT & COMMUNICATIONS (I) PRIVATE LIMITED STAR NEWS CENTRE OFF. DR.E MOSES ROAD MAHALAXMI MUMBAI 400 011. PA NO.AADCM0507A. VS. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 6(3) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI JITENDRA SAKARIA RESPONDENT BY : SHRI AARSI PRASAD O R D E R PER R.S.SYAL AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 12.09.2009 IN ITA NO.3997/MUM/2008. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONT ENDED THAT THE ONLY GROUND RAISED BEFORE THE TRIBUNAL WAS AS TO THE DISALLOWANCE OF R S.30 05 966 IN RESPECT OF WHICH THE ADDITION WAS MADE BY THE ASSESSING OFFICER ON A CCOUNT OF LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO EPF WHICH IS GOVERNED BY PROVISIONS OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X). THE LEARNED A .R. STATED THAT THE TRIBUNAL WHILE RELYING ON THE JUDGEMENT OF THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT VS. PAMWI TISSUES LTD. [(2008) 215 CTR (BOM.) 1 50] DECIDED THE POINT AGAINST THE ASSESSEE THEREBY ALLOWING THE REVENUES APPEAL. HE CONTENDED THAT THE SAID JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH C OURT IN PAMWI TISSUES LTD. (SUPRA) NOW STANDS IMPLIEDLY OVERRULED BY THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LIMITED [(2009) 319 ITR 306 (SC)] HOLDING THAT THE OMISSION OF SECOND PROVISO TO SECTION 43B WOULD BE RETROSPECTIVELY MA NO.167/MUM/2010 M/S.MEDIA CONTENT AND COMMUNICATIONS SERVICES (I) PVT.LTD. 2 APPLICABLE. IT WAS CONTENDED THAT IN THE SAID JUDGE MENT OF THE HONBLE SUPREME COURT HAS HELD THAT IF THE CONTRIBUTION IS PAID AFT ER THE DUE DATE UNDER THE RESPECTIVE ACT BUT BEFORE THE DUE DATE U/S.139(1) OF THE INCOM E-TAX ACT THE DISALLOWANCE CANNOT BE MADE. HE ALSO PLACED ON RECORD A COPY OF THE ORDER PASSED BY THE MUMBAI BENCH OF THE TRIBUNAL IN M/S.PIK PEN PRIVATE LIMITED VS. ITO IN ITA NO.6847/MUM/2008 DATED 28.1.2010 IN WHICH IT HAS B EEN HELD THAT THE JUDGEMENT IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA) WOULD SQUARELY APPLY ALSO TO THE EMPLOYEES CONTRIBUTION TO EPF AND ESI. ON THE FACT UAL MATRIX THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE FAILED TO DEPOSIT THE E MPLOYEES SHARE OF THE EPF ETC. BEFORE THE DUE DATE UNDER THE RESPECTIVE ACTS BUT THE SAME WAS PROMPTLY DEPOSITED BEFORE THE DUE DATE U/S.139(1) OF THE ACT . 3. IN THE OPPOSITION THE LEARNED DEPARTMENTAL REPRESENTATIVE CONTENDED THAT THE JUDGEMENT IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA) DOES NOT APPLY TO THE EMPLOYEES CONTRIBUTION AND THE SAME IS RESTRICTED ONLY TO THE EMPLOYERS CONTRIBUTION. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE ORDER PASSED BY THE TRIBUNA L ACCEPTING THE REVENUES APPEAL ON THIS POINT IS BASICALLY BASED ON THE JUDG EMENT IN THE CASE OF PAMVI TISSUES LTD. (SUPRA) WHICH IS NO MORE A GOOD LAW IN VIEW OF THE LATER J UDGEMENT IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). WE FIND THAT IN THE SUPREME COURT JUDGEMENT THERE IS DISCUSSION ABOUT THE APPLICABILI TY OF SECTION 36(1)(VA) AS WELL AS SECTION 2(24)(X). THESE PROVISIONS DEAL WITH THE EM PLOYEES CONTRIBUTION ONLY. IT IS STILL FURTHER NOTED THAT THE HONBLE DELHI HIGH COU RT IN CIT VS. AIMIL LTD. [(2010) 321 IRR 508 (DEL.)] HAS HELD THAT NO DISALLOWANCE CAN BE MADE IF THE E MPLOYEES SHARE OF CONTRIBUTION IS PAID BEFORE THE DUE DATE U /S 139(1) OF THE ACT. IN REACHING THIS CONCLUSION THE RELIANCE HAS BEEN PLACED ON ANO THER JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. VINAY CEMENT LTD. [(2007) 213 CTR (SC) MA NO.167/MUM/2010 M/S.MEDIA CONTENT AND COMMUNICATIONS SERVICES (I) PVT.LTD. 3 268] . IN VIEW OF THE ABOVE DISCUSSED LEGAL POSITION WE ARE OF THE CONSIDERED OPINION THAT THERE CANNOT BE ANY DISALLOWANCE OF TH E EMPLOYEES SHARE OF CONTRIBUTION TO EPF AND ESI ETC. IF IT IS DEPOSITED BY THE ASSESSEE AFTER THE DUE DATE UNDER THE RESPECTIVE ACT BUT BEFORE THE TIME PRESCR IBED U/S.139(1) OF THE ACT. IN OUR CONSIDERED OPINION THE IMPUGNED ORDER BASED ON THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN PAMVI TISSUES LTD. (SUPRA) WHICH STANDS IMPLIEDLY OVERRULED BY THE LATER SUPREME COURT JUDGEMENT DES ERVES TO BE RECTIFIED. WE THEREFORE CARRY OUT THE NECESSARY RECTIFICATION IN THE IMPUGNED ORDER AND DISMISS THE GROUND RAISED BY THE REVENUE IN ITS APPEAL. AS A RESULT OF THE RECTIFICATION DONE BY US THE REVENUES APPEAL WOULD STAND DISMISSED. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED ON THIS 21 ST DAY OF MAY 2010. SD/- SD/- ( D.K.AGARWAL ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 21 ST MAY 2010. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXIX MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.