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TMI Blog2016 (9) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. The facts and circumstances of the case are as follows:- Assessment under Section 143(3) was completed on 2nd March, 2006 by making additions under Section 43B both on account of Provident Fund and ESI dues. The assessee challenged the assessment order before the CIT(A). The CIT(A) issued notices for enhancement to the assessee and after hearing the assessee, the CIT(A) passed the following order:- "It is also judicially settled that the law to be applied for any Assmt Year is the law prevailing as on the first date of the same Assmt year. In this case the Assmt Year involved is 2003-04. Hence the law prevailing as on 01.4.03 will apply. As on 01.4.03, the amended second proviso was very much in the statute. Hence the allowability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the employer's contribution towards for the remaining eight months. The second issue relating to enhancement is default in making payment of employer's contribution towards ESI. The AO has disallowed such payment for three months in the relevant previous year. However, close scrutiny of the Annexure-III of the Tax Audit Report reveals that the employer's payment towards ESI for all the twelve months is beyond the "due date'' under the ESI Rules. In this regard the Ld. A/R, has relied on the decision of the Hon'ble ITAT, A-Bench, Kolkata in the case of Jagatdal Jute Industries Ltd. For similar reasons discussed in detail in para-8.1 (Supra), I hold that there has been default in making such payments for all the twelve months of the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by not allowing any deduction on account of employer's share of the provident fund. The CIT(A) did not issue any direction with regard to allowability or non-allowability of any amount on account of employees' contribution. He submitted that the learned Tribunal by mistake also passed an order with respect to the employees' contribution. This was the mistake made by the learned Tribunal which was sought to be corrected by the miscellaneous application but the learned Tribunal dismissed that application. The questions of law raised in this appeal are as follows:- "(a) Whether the Tribunal was correct in law and on facts in holding that there was no mistake in the order of the Tribunal although in the facts and circumstances of the case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce inadvertently added is contrary to the finding noticed above and is a patent mistake on the part of CIT(A) which cannot alter the order passed by him in the same paragraph which is in conformity with his findings noticed above. It is not also correct to allege that there was no appeal with regard to the employees' contribution to P.F. The CIT(A) had recorded his finding quoted above both as regards employer's contribution and employees' contribution. The assessee had challenged the aforesaid finding. Reference may be made to ground No.11 before the learned Tribunal which reads as follows:- "That in the facts and circumstances of the case, the ld. CIT(A) erred in not accepting the decision of the Hon'ble ITAT, Kolkata in respect of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal to the subject-matter of the appeal. In other words, according to Mr. Bajoria, the original grounds of appeal and such additional ground, as may be raised by the Appellant by the leave of the Tribunal, constitute the extent of jurisdiction of the Tribunal and it can adjudicate upon only those grounds and not beyond them. We are quite conscious of the position of law that even if a particular ground is not taken in the Memorandum of Appeal, an appellant may be taking leave of the appellate authority add grounds. In the case before us, however, neither in the Memorandum of Appeal any ground was taken in respect of the aforesaid Rs. 100 lakhs nor was any amendment sought for including such ground and the learned Tribunal below even in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and reproduced below for your honour's kind reference and attention:- ''That in the facts and circumstances of the case, the enhancement of the income amounting to addition of Rs. 1,61,49,002/- by the ld. Assessing Officer in respect of belated deposit of PF, ESI etc. is bad in law as there was no such direction of enhancement by the ld. CIT(A)". (2) The appellant craves leave to submit that the Hon'ble Members have considered the original ground of appeal in this respect and not the amended ground as narrated above." He submitted that the addition of Rs. 1,61,49,002/- made by the Assessing Officer was not in consonance with the order passed by the CIT(A). The aforesaid ground that there was no direction for enhancement by the CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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