9911796707
TMI Blog2012 (2) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act for amendment/ order in respect of certain mistakes allegedly having been crept in the order of Tribunal dated 23.11.2007. 2. Brief facts as emanating from the Miscellaneous Applications are that the additions made by Assessing Officer and confirmed by ld. CIT(Appeals) of Rs.80,86,689/- and 23,90,259/-, on account of payments by the assessee of the employees contribution to P.F. and E.S.I., were restored by Tribunal to the file of Assessing Officer with specific directions to examine whether payment was made within grace period or not in terms of the decision of Hon ble Special Bench of ITAT, Kolkata in the case of JCIT vs.- ITC Limited vide order dated 07.09.2007 in ITA No. 1541/Cal/2000. The assessee in para 2 of its Mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C)]; (ii) CIT vs.- VLS Finance Limited [310 ITR 224 (Del.)]; (iii) CIT vs.- Alom Extrusions Limited [319 ITR 306 (SC)]; (iv) Allied Motors (P) Ltd. vs.- CIT [224 ITR 677 (SC)]; (v) DCIT vs.- Universal Capsule P. Ltd. [ITA No. 3793/Mum./2005]; (vi) Honda Siel Power Product Ltd. vs.- CIT [295 ITR 466 (SC)]; (vii) M/s. Mepco Industries Ltd. vs.- CIT (Civil Appeal No. 7622-7633 of 2009, order dated 19.11.2009); (viii) JCIT vs.- ITC Limited (ITA No. 1541/Cal./2000)(Kol. Special Bench); (ix) CIT vs.- M/ss. Vijay Shree Limited (ITA No. 245 of 2011 (Kol. High Court). 3. We have considered the submissions of both the parties and have perused the records of the case. It is well settled law that if a decision of any subordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Commissioner of Wealth-tax but did not succeed. Thereupon the petitioner applied to the High Court for exercising writ jurisdiction to quash the order and for a direction to rectify the assessment order. The High Court after referring to the earlier decision of this court in the case of CWT v. Raipur Manufacturing Co. Ltd. [1964] 52 ITR 482 and of the Supreme Court in the case of Kesoram Industries and Cotton Mills Ltd. vs.- CWT [1966] 59 ITR 767, held that the provision for taxation was a debt owed was deductible while computing the net wealth of the assessee. Therefore, the High Court held that there was clearly an error of law apparent on the face of the record and the assessment order was erroneous. Repelling the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Supreme Court or concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point and it also ceases to be a point requiring elaborate arguments or detailed investigation/ inquiry. The subsequent decisions of the jurisdictional High Court do not enact the law but declare the law as it always was. Hence, it is well settled that a decision of the jurisdictional High Court, even if rendered subsequently, would constitute a mistake apparent from the record investing an authority with jurisdiction to rectify the mistake . The aforesaid decision has been affirmed by Hon ble Supreme Court in the case of ACIT vs.- Saurashtra Kutch Stock Exchange Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 . 4. We, therefore, modify Tribunal s order dated 23.11.2007 in para 14 as under :- 14. We have heard both the parties and perused the material placed before us. We find that this issue is covered by the decision of Hon ble Supreme Court in the case of CIT vs.- Vinay Cement Limited [2007] 213 CTR 268 wherein it has been held as under :- In the present case, we are concerned with the law as it stood prior to the amendment of section 43B. In the circumstances, the assessee was entitled to claim the benefit in section 43B for that period particularly in view of the fact that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed provisions of section 43(B) of the Act . 15. Coming to the facts of the present case, we find that it has been contended by the ld. counsel for the assessee that payments in respect of Employees Contribution towards P.F. and E.S.I. have been made before the due date of filing of the return. In view of the decisions of Hon ble Supreme Court in the case of Vinay Cement Ltd. (supra) and Hon ble jurisdictional High Court in the case of Vijay Shree Ltd. (supra), we deem it proper to restore the matter back to the file of Assessing Officer to find out whether the payments have been made before the due date of filing of return or not. Needless to say that Assessing Officer will allow adequate opportunity of being heard to the assessee.Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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