TaxTMI 
TaxTMI 
2004 (1) TMI 66
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dated March 31, 1999, passed under section 143(3) of the Act. While passing the said assessment order, the Assessing Officer disallowed under section 43B of the Act deduction of a sum of Rs. 2,60,809 on account of bonus paid to the employees of the assessee-company beyond the due date applicable in its case for furnishing the return of income under section 139(1) of the Act. On March 14, 2000, the Assessing Officer issued a notice to the assessee under section 154 of the Act proposing to rectify the assessment order dated March 31,1999, on the ground that certain payments by way of provident fund contributions and employees' State insurance contributions having been made by the assessee-company as an employer beyond the due dates as evident from the record. The proceeding initiated on the said notice under section 154 of the Act, was concluded after hearing and by an order dated March 28, 2000. The Assessing Officer passed the order of rectification disallowing the sum of Rs. 39,01,314 on the ground that the said amount had been paid by the assessee-company after the due date as per the relevant Acts/Rules. The appeal filed by the assessee against the said rectification order was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....S. Balaram, ITO v. Valkart Bros. [1971] 82 ITR 50 (SC); CIT v. Hero Cycles Pvt. Ltd. [1997] 228 ITR 463 (SC) and Star Rolling Mills P. Ltd. v. CIT [1988] 174 ITR 396 (Cal). The next contention of the appellant is that when in respect of a particular question two views are possible and a controversy is existing, on such question power under section 154 cannot be exercised. It is stated that in respect of the present question under consideration views have been taken by the two Tribunals and two Benches of the High Court which is the same as contended by the assessee and the Assessing Officer, in such circumstance, could not issue notice under section 154. The said judgments of the Tribunal and the Benches of the High Court, as referred to, were in the cases of Flurd Air (India) Ltd. v. Deputy CIT [1997] 63 ITD 182 (Mumbai); Hallmark Automation Pvt. Ltd. v. Asst. CIT [1996] 54 ITJ 523 (Delhi) and by a learned single judge of this court in the case of Mozufferpore Electric Supply Co. Ltd. v. ITO [1982] 134 ITR 102. It is contended by the appellant that the provident fund contributions and the provident fund contributions under pension scheme for the month of February, 1996, were dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ying the provisions of the said section 43B not only should the liability to pay the tax occur in the accounting year but the tax also should be statutorily payable in the accounting year. Reliance was also placed on the judgment in the case of CIT v. Edcons (India) Pvt. Ltd. [1992] 198 ITR 86 decided by a Division Bench of this court also holding that if it is found that the amount was not statutorily payable in the accounting year, in that event the provisions of section 43B will not apply. The last contention of the appellant is that the law in this connection as contained in section 43B has been amended by the Finance Act, 2003, with effect from April 1, 2004. Therefore, this present contention on the basis of the said amendment could not be argued before the Tribunal. But it is contended by the appellant, in such a view of the matter of an amendment taking effect subsequent to the Tribunal's order the argument on law can be advanced for the first time in this appeal as the Tribunal's order was passed on January 14, 2003, and the said amendment was published in the Official Gazette on may 14, 2003. In this connection, reference was made to a judgment in the case of H. Shiva Ra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax return by the assessee. In this connection reference was made to the provisions of law as contained in section 2(24)(x) and section 36(1)(va). It is stated that under the said statute, provident fund contribution was to be paid within 15 days from the date when salary became payable to the workmen concerned and in support of this contention, reliance was placed on the judgment in the case of CIT v. Edcons (India) Pvt. Ltd. [1992] 198 ITR 86 (Cal). Reference was also made on the judgment in the case of Sarangpur Cotton Manufacturing Co. Ltd. v. CIT [1985] 152 ITR 251 (Guj) [FB] and CIT v. Mcleod and Co. Ltd. [1982] 134 ITR 674 (Cal). Reference was made to the case of Allied Motors (P.) Ltd. [1997] 224 ITR 677 (SC), for contending that this judgment is not applicable in the present case as the same was decided in a sales tax matter which is not a subject matter of beneficial legislation whereas in the present case contributions under consideration are towards provident fund and employees' State insurance contributions under the beneficial legislation. The further contention of learned counsel for the Revenue is that the materials available before issuance of section 154 notice di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the Assessing Officer for exercising his power under section 154 which shows any other material available before such officer which disclosed further materials enabling him to form the opinion that the said contributions were paid after the due dates. It is apparent that for holding a prima facie finding out what is the due date and therefore, whether the contributions were really paid after the due dates. The documents available before the Assessing Officer do not apparently disclose what were the due dates of the said contributions. Therefore, it does not appear that without holding further enquiry from the records, it was apparent on the face of it that the said contributions were paid after the due dates. In such circumstances on the said allegation, the notice under section 154, could not have been issued and the proceeding following such notice is apparently bad. The law relied on by learned counsel for the appellant in this connection also supports such view. Further in respect of payment of such contributions, the due date has to be ascertained and a finding has to be arrived at as to whether such due date is the one referred to under section 139 of the Act or its due da....