Income Tax Appellate Tribunal - Mumbai
Satish D. Vithalani (Huf), vs Assessee
आयकर अपील य अ धकरण "ई" यायपीठ मुंबई म।
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI ी आय. पी. बंसल, या यक सद य एवं ी संजय अरोड़ा, लेखा सद य के सम । BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA, AM व वध आवेदन सं./MA No. 39/Mum/2013 (Arising out of ITA No. 3241/Mum/2007) ( नधारण वष / Assessment Year: 2004-05) Satish D. Vithalani (HUF), ITO - 15(1)(4) 5, 32, 2nd Panjrapole Lane, बनाम/ Matru Mandir, 1st Floor, C. P. Tank, Mumbai-400 004 Vs. Opp. Bhatia Hospital, Nana Chowk, Mumbai थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAAHS 4434 G Applicant : Respondent Applicant by : None Respondent by : Shri Ravi Prakash सनु वाई क तार ख / : 17.01.2014 Date of Hearing घोषणा क तार ख / : 17.01.2014 Date of Pronouncement आदे श / O R D E R Per Sanjay Arora, A. M.:
This is a Miscellaneous Application u/s.254(2) of the Income Tax Act, 1961 ('the Act' hereinafter), by the Assessee in respect of the Order by the Tribunal dated 30.01.2009 in its case for the assessment year (A.Y.) 2004-05.
2. The only issue arising in Appeal and decided by the Tribunal per its impugned order is the disallowance in respect of the employee's contribution to provident fund (PF) u/s.2(24)(x) r.w.s. 36(1)(va) of the Act, i.e., the sections allowing deduction in its respect 2 MA No. 39/Mum/2013 (A.Y. 2004-05) Satish D. Vithalani (HUF) vs. ITO under the Act. The tribunal noted that the payments were made both within and after the grace period prescribed under the relevant Act. Accordingly, following the consistent view being adopted by the tribunal, it per the impugned order allowed the claim in respect of the employee's contribution paid within the grace period while confirming the disallowance where paid beyond the grace period (as aforesaid). The assessee has now moved a miscellaneous petition (received in this office on 29.01.2013), claiming that the matter ought have been decided in his favour in view of the decision by the apex court in CIT vs. Alom Extrusions Ltd. [2009] 319 ITR 306 (SC). There has been non- consideration by the tribunal of the decisions cited before it, so that the impugned order needs to be recalled to decide the matter afresh on merits after hearing the parties.
3. None appeared for and on behalf of the assessee despite service of the notice of hearing (dated 18.11.2013) inasmuch as the same, sent per registered post acknowledgment due (RPAD), has not been received back from the postal authorities. The ld. DR has also placed on record evidence of service of notice of hearing; the Department having been also directed for the same by the Bench vide order sheet entry dated 08.11.2013. Accordingly, the hearing in the matter was proceeded with.
Reliance is placed by the assessee per its MA on the decisions in the case of Asst. CIT vs. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC); CIT vs. Smt. Aruna Luthra [2001] 252 ITR 76 (P&H) (FB); ITO vs. Pas Securities Pvt. Ltd. (in MA No.772/Mum/2009 dated 11.02.2010); V. R. Chittanandam vs. Asst. CIT [2010] 5 ITR 258 (Trib) (Chennai), Ganges Lines (India) (P) Ltd. vs. Dy. CIT [2009] 121 TTJ 946 (Mum) and Mohan Meakins Ltd. vs. ITO [2004] 89 ITD 179 (Del) (TM).
4. Before us, the ld. Departmental Representative (DR) would contend that there is no mistake, much less apparent from record, in the impugned order; the tribunal, as noted by it, having adopted a view consistent with its view. Further, apart from the decisions by the tribunal, it's view is supported by decisions by the high courts, as in the case of CIT vs. Gujarat State Road Transport Corporation [2014] 41 taxmann.com 100 3 MA No. 39/Mum/2013 (A.Y. 2004-05) Satish D. Vithalani (HUF) vs. ITO (Guj), placing a copy of the same on record. The matter is, in any case, debatable, so that no rectification u/s. 254(2) would lie.
5. We have heard the parties, and perused the material on record, as well as the case law cited. Without doubt, a decision by the hon'ble jurisdictional High Court or by the apex court would hold even where rendered subsequent to the order by the subordinate court or tribunal inasmuch as it is settles a substantial question of law, which would relate back to date of the relevant provision. As such, an order inconsistent therewith would merit rectification. This is the sum and substance of the several decisions cited by the assessee before us.
In the facts of the instant case, the decision by the apex court in Alom Extrusions Ltd. (supra) is u/s.43B and not u/s. 2(24)(x) r.w.s. 36(1)(va), which latter sections only govern the deduction of the employee's contribution to the Fund set up under the Employees State Insurance Act, 1948 or any other fund for the welfare of the employees. The apex court per the said decision held the omission of second proviso to section 43B by Finance Act, 2003 w.e.f. 01.04.2004 as retrospective, so that it would apply w.e.f. 01.04.1989, i.e., the date of its insertion by Finance Act, 1989. It is trite law that a precedent is an authority only for what it actually decides and not what may remotely or even logically follow from it [ref: Goodyear India Ltd. vs. State of Haryana and Another [1991] 188 ITR 402 (SC)]. The Special Bench of the tribunal in Jt. CIT v. ITC Ltd. [2008] 112 ITD 57 (Kol)(SB) has clarified that section 43B is only in respect of the employee's contribution to the relevant funds. Apart there-from, as noted by the tribunal, per its detailed order in ITO v. LKP Securities Ltd. [2013] 36 CCH 093 (Mum), the view is supported by the decisions by the hon'ble jurisdictional high court as well. Further, the hon'ble Gujarat high court as per its decision in Gujarat State Road Transport Corporation (supra), after an elaborate discussion in the matter, also had likewise, noting the several decisions by the different high courts taking a contrary view in the matter. The decision by the apex court in Alom Extrusions Ltd. (supra), which is binding on it, was also duly considered and distinguished. In its view, this is the only view possible. We, 4 MA No. 39/Mum/2013 (A.Y. 2004-05) Satish D. Vithalani (HUF) vs. ITO therefore, find no infirmity in the impugned order. The matter, in any case, would qualify for being considered as debatable, excluding rectification u/s. 254(2). We, accordingly, have no hesitation in rejecting the assessee's MA. We decide accordingly.
6. In the result, the assessee's miscellaneous application is dismissed.
Order pronounced in the open court on January 17, 2014 Sd/- Sd/-
(I. P. BANSAL) (SANJAY ARORA)
या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
मुंबई Mumbai; दनांकDated : 17.01.2014
व. न.स./Roshani, Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Applicant
2. यथ / The Respondent
3. आयकर आयु त(अपील) / The CIT(A)
4. आयकर आयु त / CIT - concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब
ु ई / DR, ITAT, Mumbai
6. गाड फाईल / Guard File
आदे शानस
ु ार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt. Registrar)
आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai