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2016 (9) TMI 815

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..... y, Adv., Mr. Farhan Gaffar, Adv., JUDGEMENT The subject matter of appeal is an order dated 5th December, 2008 passed by the learned Income Tax Appellate Tribunal C Bench, Kolkata in Miscellaneous Application No.98/Kol./2008 arising out of ITA No.167/Kol//2007 pertaining to the assessment year 2003-04 by which the learned Tribunal dismissed the miscellaneous application filed by the assessee. 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 of employer s contribution to the Provident Fu .....

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..... ll amounts paid within the statutory due date as per the Annexure-III). To this extent the appeal stands enhanced. The assessee carried an appeal to the Tribunal, which was partly allowed. The learned Tribunal held as follows:- We after hearing both the parties and perusing the material available on record find that the issue raised by the assessee is squarely covered by the decision of ITAT, Special Bench, Kolkata in the case of JCIT vs.- M/s. I.T.C. Limited in I.T.A. No.1541/Cal./2000 dated 07.09.2007. We, therefore, hold that so far as the employer s contribution to PF and ESI is concerned, the same should be allowed if these are paid on or before filing of return or before the due date of return, whichever is earlier and the employees contributions to this fund are only to be allowed if these are paid within the due date specified in such Act including the grace period. The miscellaneous application filed by the assessee before the learned Tribunal was only in relation to the addition on account of provident fund. Therefore, the other findings recorded by the learned Tribunal are not necessary for the purpose of disposal of this appeal. Mr. Bag, learned advocate a .....

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..... ry 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 interpretation of omission of second proviso of section 43B of the I.T. Act, 1961 as applicable in the appellant s case in respect of delayed and/or belated payment of PF and ESI. Belated payment of P.F. according to the CIT(A), it cannot be disputed, was with regard to both employees and employer s share. The learned Tribunal had as such no option but to give its view as regards both which the Tribunal did. The Tribunal as a matter of fact agreed with the views of CIT(A) as .....

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..... easons already discussed by us. In the aforesaid case the income of ₹ 1 crore was not assessed to tax by the Assessing Officer. In an appeal preferred by the assessee, the CIT(A) had no occasion to deal with the aforesaid sum of ₹ 1 crore unless he chose to enhance the assessment which he did not do. In a further appeal by the revenue against the order of CIT(A) the aforesaid income of ₹ 1 crore was not the subject-matter of challenge. It is in that view of the matter that this Court held that the Tribunal acted without jurisdiction. Mr. Bag also drew our attention to the impugned order wherein paragraphs 1 and 2 of the Miscellaneous Application have been quoted, which read as follows:- (1) It is submitted that there is no material difference in the original grounds and amended grounds except in relation to ground no.3 as incorporated in the amended grounds of appeal 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 ₹ 1,61,49,002/- by the ld. Assessing Officer in respect of belated deposit of PF, ESI etc. is bad in law as there .....

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