Assistant Commissioner Of Income Tax, Central Circle-Vii, Kolkata v. Vijay Shree Limited, Howrah .

S.V Mehrotra, A.M:— This appeal filed by the Revenue is against the order of ld. Commissioner of Income-Tax (Appeals), Central-I, Kolkata dated 24.06.2010 for the assessment year 2007-2008.

2. None appeared on behalf of assessee when the case was called for hearing. Therefore, we have decided to dispose of the appeal after hearing the ld. D.R and the material available on record.

3. Brief facts of the case are that the assessee-company was a sick Industrial Unit and was running a Jute Mill, namely Fort William Jute Mill at Shibpur, Howrah. The Mill was under suspension of work for more than 2 months from 05.01.2007 to 08.03.2008 During the period, no staff was allowed to enter in Mill for doing any accounting work. The Assessing Officer noticed that the employees' contribution towards PF and ESI were not deposited within the due date to the appropriate authority. He, therefore, disallowed Rs. 5,17,559/- on account of P.F and Rs. 2,75,086/- on account of ESI in view of the provisions of section 36(1)(va) read with section 2(24)(x) of the Act. Ld. CIT (Appeals) allowed the assessee's appeal taking note of the fact that the impugned amounts were duly paid by the assessee before due date of furnishing of return. He relied on the following decisions:—

(i) CIT v. Sabari Enterprises, (2008) 298 ITR 141 (Karnataka);

(ii) Commissioner Of Income Tax v. Alom Extrusions Limited . [319 ITR 306];

4. We have heard ld. D.R and gone through facts and circumstances of the case. We find that the facts are not disputed that the assessee had paid employees' contribution to PF and ESI before the due date of filing of return. This issue is concluded by the decision of this jurisdictional High Court in the case of CIT v. Vijay Shree Limited vide ITAT No. 245 of 2011 in GA No. 2607 of 2011 dated 7th September, 2011, wherein it has held as under:

“After hearing Mr. Sinha, learned advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of commissioner of Income Tax v. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec. 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees' contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal.”

The same issue has also been decided on 21.10.2011 in favour of assessee by ITAT, Kolkata in ITA No. 823.Kol./2010 in the case of DCIT v. Tantia Constructions Limited.

5. We, therefore, do not find any infirmity in the order of CIT(A) and the same is upheld. Accordingly, grounds of appeal are dismissed.

6. In the result, appeal of revenue is dismissed.