Calcutta High Court
Arambagh Hatcheries Ltd vs Commissioner Of Income-Tax Kolkata-Xx on 11 March, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ITA No. 267 of 2004
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income-tax)
Original Side
ITA 267 of 2004
Arambagh Hatcheries Ltd.
Versus
Commissioner of Income-Tax Kolkata-XX
ITA 268 of 2004
Arambagh Hatcheries Ltd.
Versus
Commissioner of Income-Tax Kolkata-XX
ITA 269 of 2004
Arambagh Hatcheries Ltd.
Versus
Commissioner of Income-Tax Kolkata-XX
For Appellant : Mr. N.K.Poddar, Sr.Advocate with
Mr. Vineet Gibrewal and
Mr. D.K.Kadel, Advocates
For Respondent : Mr. Dipak Som, Sr.Advocate with
Md. Nizamuddin, Advocate BEFORE:
The Hon'ble JUSTICE BHATTACHARYA The Hon'ble JUSTICE DR. SAMBUDDHA CHAKRABARTI Date : 11th March, 2011.
THE COURT : All these three appeals are taken up for hearing analogously as the points involved therein are almost similar in nature.2
A Division Bench of this Court on the selfsame date, namely, 11th May, 2004 admitted all these three appeals and it appears that these three appeals were admitted on three formulated questions. The formulated question Nos. 2 and 3 are common in all these three appeals except the relevant assessment year and amount involved therein. We, therefore, quote the aforesaid Point Nos.2 and 3 in ITA 267 of 2004 which will virtually cover the issue involved in other two appeals, namely, ITA 268 of 2004 and ITA 269 of 2004.
"II. Whether the amendment made in section 43B of the Income Tax Act, 1961 by the Finance Act, 2003 is clarificatory and thereby retrospective in nature in the light of the principles laid down by the Hon'ble Supreme Court in Allied Motors Pvt.Ltd. v. CIT (1997) 224 ITR 677 (SC)."
"III. If the answer to Question No.II above is in the affirmative, whether the disallowance of Rs.16,41,868/Rs.19,78,037 in the instant case in respect of the assessment year 1996-97 under section 43B of the Income Tax Act, 1961 was justified in law on merits, and whether it could be said to be covered by section 154 of the Income Tax Act, 1961".
However, Point No.1 formulated in ITA No.267 of 2004 is to the following effect :-
3
"I. Whether on the facts and in the
circumstances of the case and on a correct
interpretation of section 43B of the Income Tax Act, 1961, the Income Tax Appellate Tribunal, 'A' Bench, Kolkata misdirected itself in law in confirming the disallowance of Rs.16,41,868/Rs.19,78,037 in respect of the assessment year 1996-97 through the impugned proceedings under section 154 of the said Act, in so far as it held that there was a mistake apparent from record within the meaning of section 154 of the Income Tax Act, 1961 in the instant case and whether its such finding was wholly unreasonable and/or otherwise perverse".
Similarly, in ITA No.268 of 2004 and ITA No.269 of 2004,Point No.1 formulated by the Division Bench is respectively quoted below :-
"I. Whether on the facts and in the
circumstances of the case and on a correct
interpretation of section 43B of the Income Tax Act, 1961, the Income Tax Appellate Tribunal, 'A' Bench, Kolkata misdirected itself in law in confirming the disallowance of Rs.4,09,016 in respect of the assessment year 1997-98."
"I. Whether on the facts and in the
circumstances of the case and on a correct
interpretation of section 43B of the Income Tax Act, 1961, the Income Tax Appellate Tribunal, 'A' Bench, Kolkata misdirected itself in law in 4 confirming the disallowance of Rs.39,91,651 in respect of the assessment year 1998-99"
After hearing the learned counsel for the parties and after going through the materials on record, we find that the most vital question involved in these three appeals is whether the amendment made in section 43B of the Income-tax Act 1961 by the Finance Act, 2003 is clarificatory and thereby retrospective in nature. If the aforesaid question is answered in favour of the assessee, in that event, Point No.3 formulated in all these three appeals should be answered in favour of the assessee inasmuch as the Tribunal below disallowed the amount of deposit towards provident fund on the sole ground that those were delayed deposit in terms of Section 36(1)(va) read with Section 43B of the Act.
In our opinion, in view of the subsequent decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusions Ltd. reported in (2009) 318 ITR 306 (SC) whereby it has followed the earlier decision of that Court in the case of Allied Motors Pvt.Ltd.vs. CIT (1997) 224 ITR 677(SC) to the effect that the said amendment is retrospective in nature, the assessee should get the benefit of the amended provision as the deposit made was 5 within the time prescribed in section 139(1) read with Section 43B of the Act and, therefore, the order of the Tribunal below disallowing the benefit of the amendment to the assessee cannot be supported.
We, therefore, answer the second question in the affirmative and the third question in the negative.
In view of the applicability of the aforesaid amended provision of Section 43B of the Act, the first question formulated in all these three appeals is answered in the affirmative and in favour of the assessee.
All these three appeals are, thus, disposed of in terms of our aforesaid decision by setting aside the order passed by the Tribunal below.
In the facts and circumstances of the case, there will be no order as to costs.
Photostat certified copy of this order be made available to the parties upon compliance of usual formalities.
( BHATTACHARYA, J.) ( DR. SAMBUDDHA CHAKRABARTI, J.) Rsg AR(CR)