RADHAKRISHNA HOSPITALALITY SERVICES LTD, v. ASST. CIT CEN CIR 33,

MA 441/MUM/2010 | 2002-2003
Pronouncement Date: 15-10-2010 | Result: Allowed

Appeal Details

RSA Number 44119924 RSA 2010
Assessee PAN AAACR2547Q
Bench Mumbai
Appeal Number MA 441/MUM/2010
Duration Of Justice 3 month(s) 6 day(s)
Appellant RADHAKRISHNA HOSPITALALITY SERVICES LTD,
Respondent ASST. CIT CEN CIR 33,
Appeal Type Miscellaneous Application
Pronouncement Date 15-10-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 15-10-2010
Assessment Year 2002-2003
Appeal Filed On 09-07-2010
Judgment Text
1 MA 441 TO 443/M/2010 M/S RADHAKRISHNA HOSP[ITALITY SERVICES P. LTD. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H BEFORE SHRI P.M. JAGTAP A.M. AND SHRI V. DURGA RAO JM MISC. APPLICATION NO. 441/MUM/2010 ARISING OUT OF ITA NO. 1880/MUM/2008 & ITA NO. 2186 /MUM/06 ASSESSMENT YEAR 2002-03 MISC. APPLICATION NO. 442/MUM/2010 ARISING OUT OF ITA NO. 4162/MUM/2006 MISC. APPLICATION NO. 443/MUM/2010 ARISING OUT OF ITA NO. 2393/MUM/2007 M/S RADHAKRISHNA HOSPITALITY SERVICES PVT. LTD. (NAME CHANGED TO SEDEXO FOOD SOLUTIONS INDIA PVT. LTD.) IST FLOOR GEMSTAR COMMERCIAL COMPLEX KANCHPADA MALAD (W) MUMBAI 64. PAN AAACR 2547 Q VS. A.C.I.T. CENT. CIRCLE -33 ROOM NO. 32(3) AAYAKAR BHAWAN M.K. ROAD MUMBAI . APPLICANT RESPONDENT APPLICANT BY SHRI J.D. MISTRY RESPONDENT BY SHRI SURENDRA KUMAR ORDER PER P.M. JAGTAP A.M. BY THESE MISC. APPLICATIONS THE ASSESSEE IS SEEKI NG RECTIFICATION OF THE COMMON ORDER OF THE TRIBUNAL DATED 30 TH JULY 2009 PASSED IN ITA NO. 1880/MUM/2008 & ITA N O. 2186/MUM/06 ITA NO. 4162/MUM/2006 & ITA NO. 2393/ MUM/2007 ON THE GROUND THAT THE VIEW TAKEN THEREIN WHILE DISALLOWING THE C LAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF BELATED PAYMENTS OF EMPLOYEES CONTRIBUT ION TO PF AND ESIC MADE AFTER THE DUE DATE (INCLUDING GRACE PERIOD) BUT BEFORE THE DA TE OF FILING OF RETURNS OF INCOME FOR THE 2 MA 441 TO 443/M/2010 M/S RADHAKRISHNA HOSP[ITALITY SERVICES P. LTD. RELEVANT YEARS IS NOT IN CONFORMITY WITH THE DECISI ON OF HONBLE SUPREME COURT IN THE CASE OF ALOM EXCLUSION LTD. 319 ITR 306 RENDERED SU BSEQUENTLY. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT WHILE DISP OSING OF THE AFORESAID APPEALS VIDE ITS ORDER DATED 30 TH JULY 2009 (SUPRA) THE DISALLOWANCE MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF BELATED PAYMENTS OF EM PLOYEES CONTRIBUTION TOWARDS PF AND ESIC BEYOND THE DUE DATE (INCLUDING THE GRACE P ERIOD) BUT WITHIN THE DUE DATE OF FILING OF RETURNS OF INCOME FOR THE RELEVANT YEARS U/S 43-B WAS SUSTAINED BY THE TRIBUNAL. IN THE JUDGMENT DELIVERED SUBSEQUENTLY IN THE CASE OF ALOM EXCLUSION LTD. (SUPRA) THE HONBLE SUPREME COURT HAS HELD THAT EMPLOYEES CONT RIBUTION TO PF AND ESIC BEYOND THE DUE DATE (INCLUDING THE GRACE PERIOD) BUT WITHI N THE DATE OF FILING OF RETURN OF INCOME FOR THE RELEVANT YEAR CANNOT BE DISALLOWED U/S 43-B . THE DECISION RENDERED BY THE TRIBUNAL VIDE ITS ORDER DATED 30.7.2009 (SUPRA) THU S IS CONTRARY TO THE VIEW EXPRESSED BY THE HONBL;E SUPREME COURT IN THE CASE OF ALOM EXCL USION LTD. (SUPRA) RENDERED SUBSEQUENTLY AND THIS POSITION HAS NOT BEEN DISPUTE D BY THE LD. D.R. AT THE TIME OF HEARING BEFORE US. IN THE CASE OF ACIT VS. SAURASHTRA KUTC H STOCK EXCHANGE LTD. 305 ITR 227(SC) THE HONBLE SUPREME COURT HAS HELD THAT EV EN THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT ALTHOUGH RENDERED SUBSEQUENTLY WOULD GIV E RISE TO A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WHICH IS NOT IN CONFORMITY WITH THE SAID DECISION. KEEPING IN VIEW THE SAID DECISION OF THE HONBLE AP EX COURT WHICH IS SQUARELY APPLICABLE IN THE PRESENT CONTEXT WE RECTIFY THE O RDER OF THE TRIBUNAL DTD. 30.7.09 (SUPRA) AND DIRECT THE A.O. TO DELETE THE DISALLOWANCE MADE U/S 43-B IN THE RELEVANT YEARS ON ACCOUNT OF BELATED PAYMENTS OF EMPLOYEES CONTRIBUT ION TO PF AD ESIC TO THE EXTENT THE SAME WERE MADE BEFORE THE DUE DATE OF FILING OF RET URN OF INCOME FOR THE RELEVANT YEARS. 3 MA 441 TO 443/M/2010 M/S RADHAKRISHNA HOSP[ITALITY SERVICES P. LTD. 3. IN THE RESULT THE MISC. APPLICATIONS FILED BY T HE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER 2010. SD/- SD/- (V. DURGA RAO) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI DATED 15 TH OCTOBER 2010. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) VI MUMBAI 4. THE CIT- CITY 6 MUMBAI 5. THE DR BENCH H 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI 4 MA 441 TO 443/M/2010 M/S RADHAKRISHNA HOSP[ITALITY SERVICES P. LTD. DATE INITIALS 1. DRAFT DICTATED 8.10.10 12.10.10 SR.P.S./P.S. 2. DRAFT PLACED BEFORE AUTHOR 8.10.10 12.10.10 SR.P.S./P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER. - J.M./A.M. 4.DRAFT DISCUSSED/ APPROVED BY SECOND MEMBER. J.M./A.M. 5. APPROVED DRAFT COMES TO THE SR.P.S./P.S. SR.P.S./P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S. 8. DATE OF WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.