Trivedi Corporation Pvt. Ltd v. Income Tax Officer....opponent(S

O/TAXAP/1097/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 1097 of 2007 With TAX APPEAL NO. 1098 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== TRIVEDI CORPORATION PVT. LTD.....Appellant(s) Versus INCOME TAX OFFICER....Opponent(s) ========================================================== Appearance: MRS SWATI SOPARKAR, ADVOCATE for the Appellant(s) No. 1MR NITIN K MEHTA, ADVOCATE for the Opponent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE S.H.VORA Date : 22/04/2015 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.As both these appeals arising out of the impugned common judgment and order passed by the learned Tribunal and raising the same questions of law, however, with respect to different assessment years, both these appeals are decided and disposed of by this common judgment and order. 2.Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Income Tax Appellate Tribunal, Ahmedabad Bench ‘D’, Ahmedabad dated 07.02.2006 passed in ITA Nos.2618 and 2619/Ahd/2006 for A.Y. 2003-2004 and 2004-2005, the common appellant-assessee has preferred the present tax appeals to consider the following substantial questions of law:- “(ii) Whether, the omission of second proviso to Section 43B by Finance Act, 2003 being curative in nature has retrospective effect even while interpreting provisions of S.36(1)(va) of the Act? (iii) Whether, in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in confirming the action of Respondent in disallowing employer's and employee's contributions of Provident Fund (PF) paid within the due date of filing return of income under Section 43B and Section 2(24)(x) read with Section 36(1)(va) of the Act?”” 3.Today, when the present tax appeals are taken up for final hearing, Shri Nitin Mehta, learned advocate appearing on behalf of the Revenue has vehemently submitted that the substantial questions of law involved in the present Tax Appeals are now concluded by the decision of the Division Bench of this Court in the case of Commissioner of Income Tax Vs. Gujarat State Road Transport Corporation reported in [2014] 366 ITR 170 (Guj). 3.Today, when the present tax appeals are taken up for final hearing, Shri Nitin Mehta, learned advocate appearing on behalf of the Revenue has vehemently submitted that the substantial questions of law involved in the present Tax Appeals are now concluded by the decision of the Division Bench of this Court in the case of Commissioner of Income Tax Vs. Gujarat State Road Transport Corporation reported in [2014] 366 ITR 170 (Guj). 4.Shri Soparkar, learned advocate appearing on behalf of the assessee has submitted that as such in view of the decision of the Division Bench of this Court in the case of Gujarat State Road Transport Corporation (Supra) and one another decision of the Division Bench of this Court in the case of The Commissioner of Income Tax, Valsad Vs. Amoli Organics (P) Ltd rendered in Tax Appeal No.36/2008, the matters will have to be remanded to the Assessing Officer to decide the issue afresh in light of the observations made by the Division Bench of this Court in the case of Gujarat State Road Transport Corporation (Supra) and Amoli Organics (P) Ltd (Supra) as still the Assessing Officer is required to bifurcate the amount towards the employers contribution and employees contribution and is also required to consider factually, whether the employees contribution was made within the grace period or not? 5.In view of the above, the impugned common judgment and order passed by the learned Tribunal dated 07.02.2006 passed in ITA Nos.2618 and 2619/Ahd/2006 is hereby quashed and set aside and the matters are remitted back to the file of the Assessing Officer with respect to the directions under Section 36(1)(va) of the Act and with a direction to the Assessing Officer to pass an appropriate order in accordance with law and on its own merits and in light of the observations / decisions of this Court in the case of Gujarat State Road Transport Corporation (Supra) and Amoli Organics (P) Ltd (Supra). 6.In view of the above and for the reasons stated hereinabove, the impugned common judgment and order passed by the learned Tribunal dated 07.02.2006 passed in ITA Nos.2618 and 2619/Ahd/2006 is hereby quashed and set aside and the matters are remitted to file of the Assessing Officer to pass an appropriate order on the issues in accordance with law and on its own merits after considering the decisions of the Division Bench of this Court in the case of Gujarat State Road Transport Corporation (Supra) and Amoli Organics (P) Ltd (Supra). Such an exercise shall be completed within a period of six months from today, however, after giving an opportunity to the assessee. 7.With this, the present Tax Appeals are allowed to the aforesaid extent. No order as to costs. (M.R.SHAH, J.) Hitesh (S.H.VORA, J.)