Income Tax Appeal v. M/S.a.m. Bhatkal Financial Services

(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1006 OF 2008 The Commissioner of Income Tax. .Appellant Vs. M/s.A.M. Bhatkal Financial Services Pvt. Ltd. ..Respondent Mr. Suresh Kumar with Mr. P.S. Sahadevan, for the Appellant Mr. S.G. Gokhale, for the Respondents. CORAM: F.I. R.S.MOHITE, JJ. DATED: 16th March, 2009 P.C.: . Revenue is in Appeal on the following question:- (i) Whether in the facts and circumstances of the case and in law the Hon’ble Tribunal was right in confirming the order of the CIT(A) in deleting the disallowance of Rs.48,33,233/- u/s.43B and 36(1)(va) made by the Assessing Officer in respect of delayed payment of employers and employees contribution to Provident Fund and FSIC etc." 2. The question arose from the order of the Tribunal dated 20th November, 2007 for the (-2-) assessment year 2003-2004. The proviso came to be inserted by amendment which came into effect from 1st April, 2004. That, however, would not apply to the present case considering that the assessment year is 2003-2004. 4. The learned Counsel draws our attention to the judgment of this Court in Commissioner of Income Tax vs. Godaveri (Mannar) Sahakari Sakhar Karkhana Ltd., 298 ITR 149 where this Court has taken the view that considering Section 43B only in the event the assessee had paid the dues within the grace period could the assessee claim the allowance. In the instant case the employees contribution was not paid within the grace period, but was paid before filing of the returns. 5. On behalf of the assessee learned Counsel relies on the judgment in the case of Allied Motors (P) Ltd. vs. Commissioner of Income-tax, 224 ITR 677 (S.C.). That Judgment had not been considered by us in Godaveri (Mannar) Sahakari Sakhar Karkhana Ltd. (supra) as it was not brought to our attention. . Subsequent to the judgment in Godaveri (Mannar) Sahakari Sakhar Karkhana Ltd., our attention was invited to that judgment in (-3-) Commissioner of Income Tax vs. Vinay Cement Ltd., Commissioner of Income Tax vs. Vinay Cement Ltd., Commissioner of Income Tax vs. Vinay Cement Ltd., (2007) 213 CTR (S.C.) 268 which was a S.L.P. filed (2007) 213 CTR (S.C.) 268 (2007) 213 CTR (S.C.) 268 before the Supreme Court arising out the order of Gauhati High Court. The S.L.P. was dismissed. Considering the fact that the S.L.P. was dismissed and after considering as to what would constitute Commissioner of IncomeTax vs. Pamwi Tissues Ltd., (2008) 215 CTR(Bom.)150 we have reiterated the view taken in Godaveri the ratio of the judgment in Commissioner of Income Tax vs. Pamwi Tissues Ltd., (2008) 215 CTR 150 (Mannar) Sahakari Karkhana Ltd. 6. For the aforesaid reasons the appeal will have to be allowed. The order of the Tribunal to that extent is set aside. Appeal disposed of accordingly. (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.)