P. Dalal & Co. P.Ltd, Mumbai vs Assessee
- CitationI.T.A. No.4593/Mum/2013
Ratio decidendi
The rule this decision rests on
Where a claim under s.43B for PF/ESIC deduction depends on the actual date of deposit, and the record does not establish that date, the claim requires fresh examination by the Assessing Officer in light of the Supreme Court's decision in Alom Extrusions and the jurisdictional High Court's decision in Ghatge Patil Transport, and the matter is restored to the AO for that purpose. Where documents offered to prove a s.68 cash credit were not produced before the Assessing Officer and were refused admission by the First Appellate Authority on a technical ground, technical objections should not defeat the substantive examination of the claim; the issue is restored to the AO for fresh examination considering all documents the assessee furnishes, with a direction that the assessee cooperate.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
BEFORE HON'BLE S/SHRI H.L. KARWA, PRESIDENT AND B.R.BASKARAN (AM) सव ी एच.एल. कावा, अ य एवं बी.आर.बा करन, लेखा सद य
आयकर अपील सं./I.T.A. No.4593/Mum/2013 ( नधारण वष / Assessment Year :2008-09)
M/s P.Dalal and Co. Pvt.Ltd., बनाम/ Income Tax Officer, C/o Vikram V Dalal, Vs. Ward 7 (1)(3), 10C Maker Apartment, Aayakar Bhavan, 232, Walkeshwar Road, M K Road, Malabar Hill, Mumbai-400020. Mumbai-400006 (अपीलाथ /Appellant) .. ( यथ / Respondent)
थायी ले ख ा सं . /जीआइआर सं . /PAN/GIRNo. :AAACP4713E
अपीलाथ ओर से / Assessee by : Shri Vikram D Dalal यथ क ओर से/Respondent by : Shri Neil Phlip.
सन ु वाई क तार ख / Date of Hearing : 1.1.2015 घोषणा क तार ख /Date of Pronouncement : 07.1.2015
आदे श / O R D E R Per B.R.BASKARAN, Accountant Member:
This appeal filed by the assessee is directed against the order dated 26.3.2013 passed by the ld. CIT(A)-13, Mumbai and it relates to the assessment year 2008-09.
2. Following issues are constituted in this appeal:
a) Disallowance of PF/ESIC of Rs.30,941/- on account of delayed payment u/s 43B of the Income Tax Act, 1961 (the Act) and ;
b) Assessment of cash credit u/s 68 of the Act.
3. We have heard both the parties and perused the record. The ld. counsel appearing for the assessee submitted that the assessee had deposited PF/ESIC amount before the due date of filing of return of income and hence the same is 2 ITA No.4593/M/13
allowable as expenditure u/s 43B of the Income Tax Act, 1961 (the Act) in view of the decision of Hon'ble Supreme Court in the case of CIT V/s Alom Extrusion Ltd (2009) 319 ITR 306 (SC) and also in view of the recent decision of the Jurisdictional Bombay High Court in the case of CIT V/s Ghatge Patil Transport Ltd, dated 14 October, 2014 in Income Tax Appeal Nos.1002 OF 2012 and Income Tax Appeal No.1034 OF 2012. However, the assessee could not furnish details relating to the actual date of payment of PF/ESIC dues. The relevant details are not available in the orders of tax authorities also. Hence, we are of the view that the claim of the assessee requires fresh examination at the end of the AO. Accordingly, we set aside the order of ld.CIT(A) on this issue and restore the same to the file of the assessing officer with a direction to examine the same afresh as per the decision of Hon'ble Supreme Court and Jurisdictional High Court ( referred supra).
4. The next issue relates to the assessment of cash credit u/s 68 of the Act. The ld. Counsel appearing on behalf of the assessee submitted that the assessee could not furnish relevant documents before the assessing officer. He also submitted that though the assessee furnished those documents before the ld. CIT(A), yet the First Appellate Authority(FAA) refused to admit the same. Accordingly he prayed that this issue may be restored to the file of AO for fresh examination in the interest of natural justice.
5. We notice that the assessee has gathered certain documents to prove cash credit and the same was not produced before the assessing officer. The Ld CIT(A) has also refused to admit the same on technical ground. In our view, the technical reasons should not hamper the cause of justice. Accordingly, we are of the view that this issue requires fresh examination by duly considering the documents that may be furnished by the assessee before the AO. Accordingly, we set aside the order of ld.CIT(A) and restore this issue also to the file of the assessing officer with a direction to examine the same afresh by duly considering all the documents that may be furnished before him by the assessee. We also direct the assessee to fully co-operate with the assessing officer.
3 ITA No.4593/M/13 6. In the result, the assessee's appeal is allowed for statistical purposes.
The above order was pronounced in the open court on 7th Jan,2015.
घोषणा खुले यायालय म दनांकः 7th Jan, 2015 को क गई ।
sd sd (एच.एल. कावा/ H.L. KARWA) (बी.आर. बा करन,/ B.R. BASKARAN) अ य / PRESIDENT लेखा सद य/Accountant Member मब ुं ई Mumbai: Jan, 2015.
व. न.स./ SRL , Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु त(अपील) / The CIT(A)- concerned
4. आयकर आयु त / CIT concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मब ुं ई / DR, ITAT, Mumbai concerned
6. गाड फाईल / Guard file.
आदे शानस ु ार/ BY ORDER, true copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai
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