TMI Blog2004 (1) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... posal of the present appeal are that the assessee-company mainly engaged in the business of manufacture and sale of jute goods, filed its return of total income in respect of the financial year ending on March 31,1996, declaring the assessable income as nil. The return was filed with tax audit report of its chartered accountants in the prescribed form and with statement of particulars also in the prescribed form. The Assessing Officer completed the income-tax assessment of the assessee for the said assessment year 1996-97 by assessment order dated March 31, 1999, passed under section 143(3) of the Act. While passing the said assessment order, the Assessing Officer disallowed under section 43B of the Act deduction of a sum of Rs. 2,60,809 on account of bonus paid to the employees of the assessee-company beyond the due date applicable in its case for furnishing the return of income under section 139(1) of the Act. On March 14, 2000, the Assessing Officer issued a notice to the assessee under section 154 of the Act proposing to rectify the assessment order dated March 31,1999, on the ground that certain payments by way of provident fund contributions and employees' State insurance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement at said annexure 4, above referred to, only shows particulars of payments, amount of payments and dates of payments in subsequent year and from the said particulars it could not be held that any amount referred to therein was paid after the due dates. The next contention of the appellant is that for exercising power under section 154 for rectification, the mistake must be apparent on the face of the records and unless the said condition is satisfied, notice is bad. In this connection, reliance was placed on the judgment in the case of T.S. Balaram, ITO v. Valkart Bros. [1971] 82 ITR 50 (SC); CIT v. Hero Cycles Pvt. Ltd. [1997] 228 ITR 463 (SC) and Star Rolling Mills P. Ltd. v. CIT [1988] 174 ITR 396 (Cal). The next contention of the appellant is that when in respect of a particular question two views are possible and a controversy is existing, on such question power under section 154 cannot be exercised. It is stated that in respect of the present question under consideration views have been taken by the two Tribunals and two Benches of the High Court which is the same as contended by the assessee and the Assessing Officer, in such circumstance, could not issue notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made beyond the due date and therefore, the notice and the proceeding following the same are bad. Mr. Poddar, learned counsel for the appellant, referred to the judgments in the case of Srikakollu Subba Rao and Co. v. Union of India [1988] 173 ITR 708 decided by the Division Bench of the Andhra Pradesh High Court for holding that section 43B of the Income-tax Act can have no application to cases where the statutory liability which was incurred in the accounting year is also not payable according to the statute in the accounting year and for applying the provisions of the said section 43B not only should the liability to pay the tax occur in the accounting year but the tax also should be statutorily payable in the accounting year. Reliance was also placed on the judgment in the case of CIT v. Edcons (India) Pvt. Ltd. [1992] 198 ITR 86 decided by a Division Bench of this court also holding that if it is found that the amount was not statutorily payable in the accounting year, in that event the provisions of section 43B will not apply. The last contention of the appellant is that the law in this connection as contained in section 43B has been amended by the Finance Act, 2003, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 677 (SC), this contention of the appellant is to be accepted. Reliance was also placed on the judgment in the case of CIT v. Podar Cement Pvt. Ltd. [1997] 226 ITR 625 (SC) On behalf of the Revenue, their counsel has contended that the amounts towards provident fund and employees' State insurance contributions are paid under the beneficial legislation and an assessee is entitled to deduction for such amounts only if these amounts are paid within due dates prescribed by the beneficial legislation and within the due date as prescribed for filing income-tax return by the assessee. In this connection reference was made to the provisions of law as contained in section 2(24)(x) and section 36(1)(va). It is stated that under the said statute, provident fund contribution was to be paid within 15 days from the date when salary became payable to the workmen concerned and in support of this contention, reliance was placed on the judgment in the case of CIT v. Edcons (India) Pvt. Ltd. [1992] 198 ITR 86 (Cal). Reference was also made on the judgment in the case of Sarangpur Cotton Manufacturing Co. Ltd. v. CIT [1985] 152 ITR 251 (Guj) [FB] and CIT v. Mcleod and Co. Ltd. [1982] 134 ITR 674 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees' State insurance contributions paid after the due dates. From the records, it is apparent that the materials available at that stage before the Assessing Officer, only had the audit report along with the statement of particulars in the prescribed Form No. 3CD and the statement of tax duty or other sum debited to the profit and loss account but not paid during the year ended March 31, 1996. Neither from the subsequent order passed by the Assessing Officer or the Commissioner of Income-tax or the Tribunal was any other record shown to be available before the Assessing Officer for exercising his power under section 154 which shows any other material available before such officer which disclosed further materials enabling him to form the opinion that the said contributions were paid after the due dates. It is apparent that for holding a prima facie finding out what is the due date and therefore, whether the contributions were really paid after the due dates. The documents available before the Assessing Officer do not apparently disclose what were the due dates of the said contributions. Therefore, it does not appear that without holding further enquiry from the records, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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