ACIT, Trichur v. KSFE Ltd, Trichur

MA 64/COCH/2010 | misc
Pronouncement Date: 25-11-2011

Appeal Details

RSA Number 6421924 RSA 2010
Assessee PAN AABCT3817A
Bench Cochin
Appeal Number MA 64/COCH/2010
Duration Of Justice 1 year(s) 1 month(s) 11 day(s)
Appellant ACIT, Trichur
Respondent KSFE Ltd, Trichur
Appeal Type Miscellaneous Application
Pronouncement Date 25-11-2011
Appeal Filed By Department
Bench Allotted DB
Tribunal Order Date 25-11-2011
Date Of Final Hearing 30-09-2011
Next Hearing Date 30-09-2011
Assessment Year misc
Appeal Filed On 14-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE S/SHRI N.R.S.GANESAN JM AND SANJAY AROR A AM M.P. NO. 64/COCH/2010 (ARSG. OUT OF I.T.A NO. 390/COCH/2006) ASSESSMENT YEAR: 2003-04 THE ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-1(1) TRICHUR. VS. THE KERALA STATE FINANCIAL ENTERPRISES LTD. BHADRATHA MUSEUM ROAD TRICHUR. [PAN:AABCT 3817A] (REVENUE-PETITIONER) (ASSESSEE- RESPONDENT) REVENUE BY MS. VIJAYAPRABHA JR. DR ASSESSEE BY SHRI JOSE POTTAKKARAN CA-AR DATE OF HEARING 30/09/2011 DATE OF PRONOUNCEMENT 25/11/2011 O R D E R PER SANJAY ARORA AM: THIS MISCELLANEOUS PETITION IS IN RESPECT OF THE O RDER BY THE TRIBUNAL IN THE ASSESSEES CASE FOR THE ASSESSMENT YEAR (A.Y.) 2003 -04 WHICH WAS DECIDED BY IT ALONG WITH THE APPEALS (BOTH BY THE ASSESSEE AND THE REVE NUE) FOR OTHER YEARS VIDE A COMMON ORDER DATED 30.4.2010. 2. THE PRESENT APPLICATION IS AT THE INSTANCE OF TH E REVENUE QUA ITS APPEAL FOR A.Y. 2003-04. THE SAME CONCERNS TWO ISSUES ONE IN RESP ECT OF PAYMENT OF SERVICE CHARGES PRESSED VIDE GROUND NOS. 2 TO 6 OF ITS MEMORANDUM O F APPEAL AND THE SECOND REGARDING DEDUCTION OF LIC GROUP GRATUITY PAID AFTER THE DUE DATE I.E. 1.4.2002 DISALLOWED U/S. 43B(B) OF THE ACT (GROUND NO. 7). ASSTT. CIT TRICHUR V. KSFE LTD . (M.P. NO. 64 /COCH/2010 FOR AY 2003-04) 2 3.1 THE ISSUE OF SERVICE CHARGES BEING COMMON FO R OTHER YEARS (AYS 1995-96 TO 1997-98 & AYS 2001-02 TO 2002-03 & 2004-05) DECIDE D ALONG WITH WAS DECIDED BY THE TRIBUNAL VIDE PARAS 4 TO 6 OF ITS IMPUGNED ORDER. 3.2 THE SECOND ISSUE AGAIN COMMON FOR SOME YEA RS WAS DECIDED BY THE TRIBUNAL VIDE PARA 8 THUS:- THE OTHER ISSUE IN I.T.A. NO. 264/COCH/2006 SECON D ISSUE IN I.T.A. NO. 418/COCH./2006 THE SECOND AND THIRD ISSUE IN I.T. A. NO. 923/COCH/2008 AND SECOND ISSUE IN I.T.A. NO. 390/COCH/2006 IS REGARD ING THE DISALLOWANCE OF PAYMENT OF LIC GROUP GRATUITY SCHEME. ON A PERUSAL OF THE ORDERS OF THE FIRST APPELLATE AUTHORITY WE FIND THAT CIT(APPEALS) HAS DEALT WITH THIS ISSUE AT LENGTH AND CONSIDERED THE FACTS AND CIRCUMSTANCES IN ITS PROPER PERSPECTIVE AND ONLY THEREAFTER DECIDED THE ISSUE. THEREFORE WE FIND N O REASON TO INTERFERE WITH HIS CONCLUSION. ACCORDINGLY WE CONFIRM THE ORDER OF THE CIT (APPEALS) ON THIS ISSUE AS IT IS NOT RELATED TO THIS ASSESSMENT YEAR UNDER APPEAL BEFORE US. THE TRIBUNAL CONFIRMED THE ORDER OF THE LD. CIT(A) WHO HAD DELETED THE DISALLOWANCE/S ON AN APPEAL BY THE ASSESSEE SO THA T THE RESULT OF THE REVENUES APPEAL CONTESTING THE SAME (IN I.T.A. NO. 390/COCH/2006) OUGHT TO HAVE BEEN `DISMISSED WHILE PER PARA 14 OF THE ORDER TABULATING THE RESU LT OF THE APPEALS THE RESULT FOR THIS APPEAL IS STATED AS PARTLY ALLOWED. THERE IS THU S IT IS CONTENTED BY THE REVENUE A CONTRADICTION IN THE ORDER OF THE TRIBUNAL QUA THE REVENUES SAID APPEAL. IT ALSO HIGHLIGHTS THE LAST SENTENCE OF PARA 8 IN-AS-MUCH-AS THE WORD S AS IT IS NOT RELATED TO THIS ASSESSMENT YEAR UNDER APPEAL BEFORE US DO NOT CORRESPOND WITH THE REASON FOR THE DELETI ON OF THE DISALLOWANCE BY THE LD. CIT(A) WHOSE ORDER STANDS UPHELD BY THE TRIBUNAL FURTHER ACCENTUATING THE CONTRADICTION AFORESAID. 4 WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. THE ADMITTED FACT IS THAT THE ENTIRE SUM OF GROUP GRATUITY UNDER REFE RENCE (I.E. ` 156.02 LAKHS) WAS PAID BY THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR. WH ILE ` 250688/- WAS PAID ON 16.4.2002 ASSTT. CIT TRICHUR V. KSFE LTD . (M.P. NO. 64 /COCH/2010 FOR AY 2003-04) 3 THE BALANCE ` 15351141/- WAS PAID ON 28.10.2002. THE LD. CIT(A) HAS DEALT WITH THE SAME AT PARAS 9 TO 9.4 (PGS. 24 TO 28) OF HIS ORDER DATED 29.3.2006. WHILE HE CONFIRMED THE DISALLOWANCE OF ` 2.51 LAKHS PAID ON 16.4.2002 (THOUGH AT SOME PLACES THE DATE IS MENTIONED AS `11.4.2002) FINDING THE PROVISION OF S. 43B(B) (SECOND PROVISO ) AS APPLICABLE THERE-TO (PARAS 9 9.4) THE DISALLOWANC E OF THE BALANCE ` 153.51 LAKHS (PAID ON 28.10.2002) WAS DELETED BY HIM FINDING THE SAME AS DEDUCTIBLE U/S. 36(1)(V) AND FURTHER NOT HIT BY THE SECOND PROVISO U/S. 43B(B). HE RELIED I.E. APART FROM THE CASE LAW ON THE COMMUNICATION TO THE ASSESSEE BY THE LIC OF INDIA - TO WHOM THE PAYMENT WAS MADE - VIDE THEIR LETTERS DATED 13.5.2002 AND 19.10.2002 ( REFER PARAS 9.1 TO 9.3). THE TRIBUNAL AS APPARENT FROM PARA 8 OF ITS ORDER (SUPRA) HAS CONF IRMED THE ORDER OF THE FIRST APPELLATE AUTHORITY IN TOTO I.E. BOTH WITH REGARD TO THE CONFIRMATION OF THE DELETION AND FOR THE SAME REASON/S AS FOUND FAVOUR WITH THE SAID AUTHORI TY. AS SUCH THE INTERNAL INCONSISTENCY STATED BY THE REVENUE PER ITS INSTAN T APPLICATION IS PRESENT SO THAT TO THIS EXTENT THERE IS A MISTAKE APPARENT IN THE TRIBUNAL S ORDER WHICH CALLS FOR PROPER RECTIFICATION. THE DECISION BY THE TRIBUNAL ON BOT H THE ISSUES RAISED IN THE REVENUE APPEAL WHICH IS COMMON FOR OTHER YEARS AS WELL IS VERY CLEAR; IT ALLOWING THE ASSESSEES CLAIM UPHOLDING THE ORDER OF THE LD. CIT(A). THE MISTAKE THUS IS IN PARA 14 OF THE TRIBUNALS ORDER BEARING THE RESULTS OF THE APPEAL S BEING DECIDED SO THAT THE RESULT OF THE REVENUES APPEAL IN I.T.A. NO. 390/COCH/2006 OUGHT TO BE ` DISMISSED INSTEAD OF ` PARTLY ALLOWED . AS REGARDS THE CAPTIONED/HIGHLIGHTED WORDS OF T HE LAST SENTENCE OF PARA 8 WE ARE AGAIN IN AGREEMENT WITH THE REVENUE THAT THE SA ME IS INCONSISTENT WITH THE DECISION BY THE TRIBUNAL IN-AS-MUCH AS THE ORDER OF THE LD. CIT(A) HAS BEEN APPROVED AND UPHELD AS AFORE-NOTED IN TOTO INCLUDING ITS REASONING AND WHICH NOWHERE MAKES REFERENCE TO A DIFFERENCE IN THE ASSESSMENT YEAR AS STATED IN THE LAST SENTENCE OF PARA # 8 OF ITS ORDER. ACCORDINGLY THE WORDS AS IT IS NOT RELATED TO THIS ASSESSMENT YEAR UNDER APPEAL BEFORE US FORMING PART THEREOF STAND TO BE DELETED AND AR E HEREBY DIRECTED TO BE SO. FURTHER IN VIEW OF THE SAID RECTIFICATIONS THE IMPUGNED ORDER MAY BE HENCEFORTH READ IN CONJUNCTION WITH THIS ORDER. WE DECIDE ACCORDINGLY. ASSTT. CIT TRICHUR V. KSFE LTD . (M.P. NO. 64 /COCH/2010 FOR AY 2003-04) 4 5. IN THE RESULT THE REVENUES MISCELLANEOUS APPLI CATION IS ALLOWED. SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 25TH NOVEMBER 2011 GJ COPY TO: 1. THE KERALA STATE FINANCIAL ENTERPRISES LTD. BHA DRATHA MUSEUM ROAD TRICHUR. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -1(1) TRICHUR. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-V KOCH I. 4. THE COMMISSIONER OF INCOME-TAX TRICHUR. 5. D.R. I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE .