Income Tax Appellate Tribunal - Kolkata
Shree Baidynath Ayurved Bhawan Pvt. ... vs Department Of Income Tax on 3 May, 2012
आयकर अपीलीय अधीकरण, Ûयायपीठ - " C ", कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- 'C" CALCUTTA
(सम¢)Before ौी सी.डȣ.राव, लेखा सदःय एवं/and
Shri C.D. Rao, Accountant Member
ौी जॉज[ म1थान, Ûयायीक सदःय)
Shri George Mathan, Judicial Member
आयकर अपील संÉया / ITA No. 736/Kol/2010
िनधॉरण वषॅ/Assessment Year: 2004-05
D.C.I.T,Circle-12, Kolkata -वनाम- M/s. Shree Baidyanath Ayurved
Bhawan Pvt. Ltd
-Versus-
PAN:AAEC 55408D
.
(अपीलाथȸ/APPELLANT ) (ू×यथȸ/RESPONDENT)
आयकर अपील संÉया / ITA Nos. 796 & 797/Kol/2010
िनधॉरण वषॅ/Assessment Years: 2004-05 & 2005-06
M/s. Shree Baidyanath Ayurved -वनाम- D.C.I.T,Circle-12, Kolkata
Bhawan Pvt. Ltd
-Versus-
PAN:AAECS 5408D
.
(अपीलाथȸ/APPELLANT ) (ू×यथȸ/RESPONDENT)
अपीलाथȸ के िलए /For the Appellant ौी/Shri S.K.Sinha, ld.DR
ू×यथȸ के िलए/For the Respondent: ौी/Shri Dilip Basu, FCA,CA, ld.AR
सुनवाई कȧ तारȣख/Date of Hearing : 03-05-2012
घोषणा कȧ तारȣख/Date of Pronouncement: 07-05-2012
आदे श/ORDER
प1र बɅच/ Per Bench The appeal in ITA No.736/Kol/10 is filed by the revenue against the order of the learned Commissioner of Income-tax (Appeals), XII, Kolkata in Appeal No. 159/XII/ACIT- 12/06-07 dated 27-01-2010 for the assessment year 2004-05, the appeal in ITA No. 796/Kol/10 is filed by the assessee against the order of the learned Commissioner of Income-tax (Appeals), XII, Kolkata in Appeal No. 159/XII/ACIT-12/06-07 dated 27-01-2010 for the assessment year 2004-05 and appeal in ITA No.797/Kol/10 is filed by the assessee against the order of the learned Commissioner of Income-tax (Appeals), XII, Kolkata in Appeal No. 542/XII/JCIT-R- 12/07-08 dated 27-01-2010 for the assessment year 2005-06..
2. As all the appeals relate to the same assessee and involve identical issues as also connecting issues, all the three appeals are disposed of by this common order for the sake of convenience.
3. Shri S.K.Sinha, learned DR represented on behalf of the revenue and Shri Dilip Basu, FCA,CA, learned AR represented on behalf of the assessee.
ITA No.736/Kol/2010 A.Y 2004-05 [by the revenue]4. In this revenue's appeal, the revenue has raised following ground of appeal :-
"On the facts and in the circumstances of the case ld.CIT(A) erred in deleting the disallowances of Rs.5,75,938/- and Rs.38,322/- u/s. 36(1)9va) for depositing the employees' contribution towards provident fund and ESI respectively beyond the due dates without appreciating the facts of the case."
5. It was fairly agreed by both the sides that the issue in the revenue's appeal was against the action of the learned Commissioner of Income-tax (Appeals) in deleting the disallowance made by the Assessing Officer in respect of the depositing the employee's contribution towards Provident Fund and ESI beyond due date, but before the date of filing of return. It was fairly agreed by both the parties that the issue was squarely covered in favour of the assessee by the decision of the Hon'ble Jurisdictional Calcutta High Court in the case of CIT Vs. Vijay Shree Limited in ITA No.245 of 2011 in G.A No.2007 of 2011 dated 7th September 2011, wherein the Hon'ble Jurisdictional High Court has held as follows:-
"After hearing Mr.Sinha, learned advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusions Ltd, we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec.43(B) of the Income Tax act, as introduced by Finance Act, 2003, was curative in nature and is required to applied retrospectively with effect from 1st April, 1988.
Such being the position, the deletion of the amount paid by the Employees' contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act.
ITA Nos.736,796 & 797/Kol/110--C GM PB 2 We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal."
6. We have considered the submissions. On perusal the facts of the present case, as it is squarely covered by the said decision of the Hon'ble Jurisdictional Calcutta High Court in the case of M/s. Vijay Shree Limited (refer supra), respectfully following the said decision of the Hon'ble Jurisdictional Calcutta High Court, we remit the issue back to the file of the Assessing Officer to verify the date of payment, as to whether the payment is made within the due date of filing of return u/s. 139(1) of the Act. If the payment is made within the due date of filing of return u/s. 139(1) of the Act, then the addition so made would be deleted in full. In the circumstances, the appeal of the revenue [ITA No.736/Kol/2010] for the assessment year 2004- 05 is allowed for statistical purpose.
ITA Nos. 796 & 797/Kol/2010 for the A.Ys 2004-05 & 2005-06 (by the assessee)
7. In ITA No.796/Kol/2010 for the A.Y 2004-05 the assessee has raised following grounds of appeal:-
1. That the Appellant Company denies its Liabilities to be assessed on a Total Income as reduced by the Ld.CIT(Appeal)- XII/ Kolkata and/or to pay the balance tax demanded thereon.
2. That the ld.CIT(Appeal)-XII/Kol was wrong in his approach in disallowing the consultancy charges to the tune of Rs.8,68,800/- which has been partly allowed in the past.
3. That the ld.CIT(Appeal)-XII/Kol failed to realize the fact of the matter and relied completely on the order of DCIT,Cir-
12/Kol and hence confirmed the deduction u/s. 80 IB to the tune of Rs.1,60,41,115/- out of total deduction claimed u/s. 80 IB for Rs. 1,89,85,857/-. The appellant Company has prepared an appeal u/s.260A of the I.T Act, 1961 before the Hon'ble High Court at Kolkata and the said appeal has been admitted.
4. That the appellant Company craves leave to submit further and additional ground or grounds before or at the time of hearing of the appeal"
8. In ITA No.797/Kol/2010 for the A.Y 2005-06 the assessee has raised following grounds of appeal:-
ITA Nos.736,796 & 797/Kol/110--C GM PB 3
1. That the Appellant Company denies its Liabilities to be assessed on a Total Income as reduced by the Ld.CIT(Appeal)- XII/ Kolkata and/or to pay the balance tax demanded thereon.
2. That the ld.CIT(Appeal)-XII/Kol was wrong in his approach in disallowing the consultancy charges to the tune of Rs.11,96,160/- which has been partly allowed in the past.
3. That the ld.CIT(Appeal)-XII/Kol failed to realize the fact of the matter and relied completely on the order of DCIT,Cir-
12/Kol and hence confirmed the deduction u/s. 80 IB to the tune of Rs.29,69,642/- out of total deduction claimed u/s. 80 IB for Rs. 38,67,681/-. The appellant Company has prepared an appeal u/s.260A of the I.T Act, 1961 before the Hon'ble High Court at Kolkata and the said appeal has been admitted.
4. That the appellant Company craves leave to submit further and additional ground or grounds before or at the time of hearing of the appeal"
9. It was fairly agreed by both the sides that the issue was against the action of the learned Commissioner of Income-tax (Appeals) in upholding the action of the Assessing Officer in respect of proportionate allotment of expenses. The assessee has filed a declaration u/s. 158A(1) of the Income-tax Act, 1961 in Form No.8 [See rule 16] dated 25-02-2011 for both the assessment years ie. 2004-05 & 2005-06 submitting that on identical issues substantial question of law has been admitted by the Hon'ble Jurisdictional High Court for the assessment year 2003-04 in ITA No.526 of 2008 vide order dated 5-8-2008 against the order of the co- ordinate bench of this tribunal in ITA No. 2430/Kol/2007 dated 9-5-2008 for the assessment year 2003-04 [assessee's own case]. A report of the Assessing Officer had been called for on the form no.8 filed by the assessee and the Assessing Officer in his report dated 29-07-2011 has accepted that the issue is identical for the assessment years 2004-05 and 2005-06 in the assessee's appeals before the ITAT in ITA Nos. 796 & 797/Kol/10. As it has been agreed by both the sides that the issue is identical for both the assessment years as also identical to the issue before the Hon'ble Jurisdictional High Court of Calcutta admitted and pending for the assessment year 2003-04, the issue in these appeals are restored to the file of the Assessing Officer to await the decision of the Hon'ble Jurisdictional High Court of Calcutta in assessee's own case for the assessment year 2003-04. The decision of the Hon'ble Jurisdictional High Court in assessee's own case for the assessment year 2003-04 would be ITA Nos.736,796 & 797/Kol/110--C GM PB 4 binding on the assessee and the Assessing Officer would apply the same decision to the identical issue for the assessment years 2004-05 and 2005-06 in view of the application made by the assessee u/s. 158A(1) of the Act. In the circumstances, both the appeals of the assessee i.e. ITA Nos. 796 & 797/Kol/2010 for the assessment years 2004-05 and 2005-06 are partly allowed for statistical purpose.
10. In the result, the appeal of the revenue in ITA No. 736/Kol/2010 for assessment year 2004-05 is allowed for statistical purpose and the appeals of the assessee in ITA Nos. 796 & 797/Kol/2010 for the assessment years 2004-05 & 2005-06 are partly allowed for statistical purpose.
यह आदे श खुले Ûयायालय मɅ सुनाया गया है THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt 07-05-2012 Sd/- Sd/-
( सी.डȣ.राव, लेखा सदःय ) ( जॉज[ म1थान, Ûयायीक सदःय ) ( C.D Rao, Accountant Member) (George Mathan, Judicial Member) (तारȣख) तारȣख)Date 07-05 -2012
*PP/SPSआदे श कȧ ूितिलǒप अमेǒषतः/ Copy of the order forwarded to:
1.. अपीलाथȸ / The Appellant : D.C.I.T Cir-12, P-7 Chowringhee Sq, 7th fl, Kol-
69. 2 ू×यथȸ / The Respondent- M/s. Shree Bidyanath Ayurved Bhawan Pvt.Ltd 1 Gupta Lane,Kol-6.
3 आयकर किमशनर/The CIT,
4.. आयकर किमशनर (अपील)/The CIT(A)
5. वभािगय ूितनीधी / DR, Kolkata Bench
6. Guard file.
स×याǒपत ूित/True Copy, आदे शानुसार/ By order, सहायक पंजीकार/Asstt Registrar ITA Nos.736,796 & 797/Kol/110--C GM PB 5