Eastern Power Distribution Company of Andhra Pradesh Limited, Visakhapatnam V. Assistant Commissioner of Income Tax, Circle-3(1), Visakhapatnam

CO 104/VIZ/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0375 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 12-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Deemed to accrue or arise in india
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 405 / VIZ /201 8 (ASST. YEAR : 20 13 - 14 ) ACIT, CIRCLE - 3(1), VISAKHAPATNAM. V S . M/S. EASTERN POWER DISTRIBUTION COMPANY OF ANDHRA PRADESH LTD., P & T COLONY, VISAKHAPATNAM. PAN NO. AAACE 9876 B (APPELLANT) (RESPONDENT) C.O.NO. 104/VIZ/2018 (ARISING OUT OF ITA NO. 405 / VIZ /201 8) (ASST. YEAR : 20 13 - 14 ) M/S. EASTERN POWER DISTRIBUTION COMPANY OF ANDHRA PRADESH LTD., P & T COLONY, VISAKHAPATNAM. VS. ACIT, CIRCLE - 3(1), VISAKHAPATNAM. PAN NO. AAACE 9876 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 14 / 1 1 /201 8 . DATE OF PRONOUNCEMENT : 22 / 1 1 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF 2 ITA NO. 405/VIZ/2018 C.O.NO. 104/VIZ/2018 ( M/S. EASTERN POWER DISTRIBUTION CO. LTD. ) INCOME TAX (APPEALS) - 10 , HYDERABAD , DATED 0 8 /0 5 /201 8 FOR THE ASSESSMENT YEAR 20 13 - 14 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE - COMPANY ENGAGED IN THE BUSINESS OF SUPPLY AND DISTRIBUTION OF ELECTRICITY, AND HAS REMITTED PROVIDENT FUND BELATEDLY. THEREFORE, THE ASSESSING OFFICER HAS DISALLOWED THE SAME ON THE GROUND THAT THE ASSESSEE HAS NOT REMITTED WITHIN THE PRESCRIBED DUE DATE AS PER THE RELEVANT ACT, HENCE, HE TREATED THE SAME AS DEEMED INCOME OF THE ASSESSEE UNDER SECTION 2(24)(X) R.W.S. 36(1)(VA) OF THE ACT. ACCORDINGLY, HE ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 3 . ON APPEAL BEFORE THE LD. CIT(A), IT WAS S UBMITTED THAT THOUGH THE ASSESSEE HAS PAID THE AMOUNTS BELATEDLY, THE CONTRIBUTION RECEIVED FROM THE EMPLOYEES PAID TO THE ACCOUNT BEFORE DUE DATE OF FILING OF THE RETURN AS PER SECTION 139(1) OF THE ACT. THE LD.CIT(A) BY FOLLOWING THE DECISION OF THE COO RDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 374/VIZ/2017, DATED 20/09/2017 DIRECTED THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASSESSEE. 4. ON APPEAL BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN 3 ITA NO. 405/VIZ/2018 C.O.NO. 104/VIZ/2018 ( M/S. EASTERN POWER DISTRIBUTION CO. LTD. ) ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2011 - 12 IN ITA NO. 609/VIZ/2014 BY ORDER DATED 29/07/2016, WHEREIN THE TRIBUNAL HAS DISCUSSED THE ISSUE IN DETAIL AND PRA YED THAT SAME MAY BE FOLLOWED. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS RELIED ON THE ORDER PASSED BY THE ASSESSING OFFICER. 6 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 7 . THE ONLY ISSUE INVOLVED IN THIS APPEAL IS WHETHER THE CONTRIBUTION RECEIVED FROM THE EMPLOYEES PAID BEFORE DUE DATE OF FILING OF THE RETURN, IS ALLOWABLE OR NOT. IN THIS CONTEXT, THE ITAT, VISAKHAPATNAM BENCH IN THE CASE OF DCIT VS. M/S. EASTERN POWER DI STRIBUTION COMPANY OF A.P. LTD., IN ITA NO. 609/VIZ/2014, DATED 29/07/2016 HELD AS UNDER: - 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE A.O. MADE ADDITIONS TOWARDS BELATED PAYMENT OF EMPLOYEES CONTRIBUTIONS TO PF. ACCORDING TO THE A.O., EMPLOYEES CONTRIBUTI ON TO PROVIDENT FUND IS DEDUCTIBLE UNDER THE PROVISIONS OF SECTION 36(1)(VA) OF THE ACT, IF THE SAME IS PAID ON OR BEFORE THE DUE DATE SPECIFIED UNDER THE PROVIDENT FUND ACT. THE A.O. FURTHER WAS OF THE OPINION THAT IN VIEW OF THE CLEAR PROVISIONS OF SECT ION 2(24)(X) R.W.S. 36(1)(VA) OF THE ACT, ANY RECOVERY FROM EMPLOYEES TOWARDS PROVIDENT FUND CONTRIBUTION IS DEEMED TO BE INCOME OF THE ASSESSEE, IF THE EMPLOYER NOT PAID THE SAME TO THE PROVIDENT FUND ACCOUNT OF THE EMPLOYEE WITHIN DUE DATE SPECIFIED UNDE R THE PROVISIONS OF PF ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT SECOND PROVISO TO SECTION 43B OF THE ACT PROVIDES THAT NO DEDUCTION SHALL BE ALLOWED UNLESS SUCH SUM IS ACTUALLY BEEN PAID ON OR BEFORE DUE DATE AS SPECIFIED IN EXPLANATION TO 36(1)(VA) OF THE ACT WHICH WAS OMITTED BY THE FINANCE ACT, 2003 W.E.F. 4 ITA NO. 405/VIZ/2018 C.O.NO. 104/VIZ/2018 ( M/S. EASTERN POWER DISTRIBUTION CO. LTD. ) 1.4.2004 AND ACCORDINGLY, THERE WAS NO SPECIAL PROVISION REGARDING EMPLOYEES CONTRIBUTION TO PF. IT IS FURTHER CONTENDED THAT AS PER THE AMENDED PROVISIONS OF SECTION 43B OF THE ACT, ANY SUM P AYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO PF SHALL BE ALLOWED, IF THE SAME IS PAID ON OR BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. 6. THE ONLY ISSUE TO BE RESOLVED IS WHETHER THE ASSESSEE WOULD BE ENTITL ED TO CLAIM DEDUCTION FOR THE EMPLOYEES CONTRIBUTION MADE TO PF AFTER THE DUE DATE PRESCRIBED UNDER THE PF ACT, BUT BEFORE THE DUE DATE PRESCRIBED FOR FILING OF INCOME TAX RETURN IN THE LIGHT OF THE PROVISIONS CONTAINED IN SECTION 36(1)(VA) OF THE ACT AND SECTION 43B(B) OF THE ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT THERE IS NO DISTINCTION BETWEEN EMPLOYER AND EMPLOYEE CONTRIBUTION AFTER OMISSION OF SECOND PROVISO OF SECTION 43B OF THE ACT BY FINANCE ACT, 2003 W.E.F. 1.4.2004. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THERE IS NO DIFFERENCE BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION UNDER THE PF ACT. SECTION 6 OF PROVIDENT FUND ACT PROVIDES FOR CONTRIBUTION AND THE MANNER IN WHICH SUCH CONTRIBUTION SHALL BE MADE. PARAGRA PH 30 OF THE PF SCHEME PROVIDES FOR PAYMENT OF CONTRIBUTIONS. AS PER THE SAID SCHEME, THE EMPLOYER AT THE FIRST INSTANCE SHALL MAKE THE TOTAL CONTRIBUTION INCLUDING EMPLOYEES SHARE. PARAGRAPH 32 PROVIDES FOR RECOVERY OF MEMBER SHARE OF CONTRIBUTION AND AS PER THE SCHEME, THE EMPLOYER CAN RECOVER THE EMPLOYEES SHARE FROM THE WAGES PAID TO THE EMPLOYEE. THEREFORE, AS PER THE PF ACT AND SCHEME OF CONTRIBUTIONS, THE CONTRIBUTIONS MEANS AND INCLUDE BOTH EMPLOYEES AND EMPLOYERS SHARE. SIMILARLY, SECTION 2 (C) OF THE PROVIDENT FUND ACT DEFINES THE CONTRIBUTION TO MEAN A CONTRIBUTION PAYABLE IN RESPECT OF A MEMBER UNDER THE SCHEME OR THE CONTRIBUTION PAYABLE IN RESPECT OF AN EMPLOYEE TO WHOM THE SCHEME APPLIES. THERE IS A PRESCRIBED MODE OF PAYMENT OF CONTRIB UTIONS UNDER THE PF ACT. UNDER THE SAID ACT, THE EMPLOYER SHALL CONTRIBUTE BOTH EMPLOYEES AND EMPLOYER SHARE ALONG WITH ADMINISTRATIVE CHARGES BEFORE THE DUE DATE SPECIFIED UNDER THE PF ACT. THE ACT PRESCRIBED ONLY ONE DUE DATE FOR DEPOSITING THE CONTRIB UTION I.E. 15 TH OF SUBSEQUENT MONTH WITH THE GRACE PERIOD OF 5 DAYS WHICH INDICATES THAT THERE IS NO DIFFERENCE BETWEEN EMPLOYEE AND EMPLOYER CONTRIBUTION. IF THE LEGISLATURE INTENDS TO DIFFERENTIATE EMPLOYEES AND EMPLOYER CONTRIBUTION, THEN THERE WOULD HA VE BEEN TWO DUE DATES LIKE IN THE CASE OF INCOME TAX ACT. THEREFORE, FROM THE ABOVE, IT IS CLEAR THAT THE PROVIDENT FUND ACT DOES NOT DIFFERENTIATE EMPLOYEES AND EMPLOYER CONTRIBUTION AND CONTRIBUTION MEANS BOTH EMPLOYEES AND EMPLOYER CONTRIBUTION UNDER T HE PF SCHEME. 7. SECTION 43B OF THE ACT PROVIDES FOR CERTAIN DEDUCTIONS TO BE ALLOWED ONLY ON ACTUAL PAYMENT BASIS. SUB CLAUSE (B) OF SECTION 43B OF THE ACT COVERS ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATIO N FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF THE EMPLOYEES. THE PROVISO TO SECTION 5 ITA NO. 405/VIZ/2018 C.O.NO. 104/VIZ/2018 ( M/S. EASTERN POWER DISTRIBUTION CO. LTD. ) PROVIDES THAT ANY SUM PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE MADE UNDER THE PROVISIONS OF SECTION 43B OF THE ACT. A CAREFUL CONSIDERATION OF SECTION 43B OF THE ACT, IT IS CLEAR THAT AN EXTENSION IS GRANTED TO THE ASSESSEE TO MAKE THE PAYMENT OF PF CONTRIBUTIONS OR ANY OTHER FUND TILL THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT. THEREFORE, IN OUR OPINION, THERE IS NO DIFFERENCE BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION TO PF AND IF SUCH CONTRIBUTION IS MADE ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN DEDUCT ION IS TO BE ALLOWED UNDER THE PROVISIONS OF SECTION 43B OF THE ACT. 8. THE HONBLE KARNATAKA HIGH COURT, IN THE CASE OF ESSAE TERAOKA (P) LTD. VS. DCIT 366 ITR 408 TOOK THE VIEW THAT THE WORD CONTRIBUTION OCCURRING IN SECTION 43B OF THE ACT WOULD INCLUD E EMPLOYEES CONTRIBUTION TO PF IN THE LIGHT OF THE DEFINITION OF THE WORD CONTRIBUTION AS PER THE PROVISIONS OF SECTION 2(C) OF THE PF ACT. AS PER THE SAID SECTION, CONTRIBUTION WOULD MEAN BOTH EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION. ACCORDI NGLY, IT WAS HELD THAT THE PROVISIONS OF SECTION 43B OF THE ACT ALLOWING DEDUCTION FOR PAYMENT MADE BEFORE THE DUE DATE OF FILING OF INCOME TAX RETURN CANNOT BE IGNORED. SIMILARLY, THE ITAT, HYDERABAD TRIBUNAL IN THE CASE OF TETRA SOFT (INDIA) PVT. LTD. VS . ACIT (2015) 40 ITR (TRIB) 470 HELD THAT WHEN ASSESSEE REMITTED EMPLOYEES CONTRIBUTION TO PF WITHIN DUE DATE OF FILING RETURN OF INCOME U/S 139(1) OF THE ACT, AMOUNT OF EMPLOYEES CONTRIBUTION TO PF CANNOT BE DISALLOWED. SIMILAR VIEW WAS UPHELD BY THE CH ENNAI BENCH OF THE ITAT, IN THE CASE OF ACIT VS. FARIDA SHOES PVT. LTD. (2016) 46 CCH 29. THE COORDINATE BENCH HELD THAT IF ASSESSEE HAD NOT DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND UP TO THE DUE DATE AS PRESCRIBED UNDER RELEVANT STATUTE, B UT BEFORE DUE DATE OF FILING OF RETURN NO DISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE ACT. IN THE CASE OF CIT VS. UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD. 35 TAXMAN 616, THE HONBLE HIGH COURT OF RAJASTHAN, AFTER REFERRING T O THE APEX COURT DECISION IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306 & CIT VS. VINAY CEMENT LTD. HELD THAT THE DEDUCTIONS SHOULD BE ALLOWED FOR THE PAYMENT OF EMPLOYEES CONTRIBUTION MADE BEFORE THE DUE DATE OF FILING OF RETURN. SIMILARLY, IN THE CASE OF CIT VS. STATE BANK OF BIKANER, THE HONBLE RAJASTHAN HIGH COURT HELD THAT CONTRIBUTION PAID AFTER THE DUE DATE UNDER THE RESPECTIVE ACT, BUT BEFORE FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT CANNOT BE DISALLOWED U/S 43B OF THE ACT AND O R U/S 36(1)(VA) OF THE ACT. 9. THE LD. D.R. RELIED UPON THE DECISION OF HONBLE HIGH COURT OF KERALA, IN THE CASE OF CIT VS. MERCHEM LTD, REPORTED IN (2015) 378 ITR 443 AND SUBMITTED THAT EMPLOYEES CONTRIBUTION TO PROVIDENT FUND IS ALLOWED AS DEDUCTION, I F THE SAME IS DEPOSITED ON OR BEFORE THE DUE DATE SPECIFIED UNDER THE PROVISIONS OF PROVIDENT FUND ACT. THE D.R. ALSO RELIED UPON THE 6 ITA NO. 405/VIZ/2018 C.O.NO. 104/VIZ/2018 ( M/S. EASTERN POWER DISTRIBUTION CO. LTD. ) DECISION OF GUJARAT HIGH COURT, REPORTED IN (2014) 366 ITR 170, WHEREIN THE HONBLE GUJARAT HIGH COURT HELD THAT SINCE ASS ESSEE HAD NOT DEPOSITED SAID CONTRIBUTION TO RESPECTIVE FUND ACCOUNT ON THE DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36(1)(VA) OF THE ACT, DISALLOWANCE MADE BY THE A.O. WAS JUST AND PROPER. THOUGH, THE D.R. RELIED UPON CERTAIN JUDICIAL PRECEDENTS WHICH ARE IN FAVOUR OF THE REVENUE, IN VIEW OF THE DECISION OF HONBLE SUPREME COURT, IN THE CASE OF CIT VS. M/S. VEGETABLES PRODUCTS LTD. REPORTED IN 88 ITR 192, WHEREIN THE HONBLE SUPREME COURT HELD THAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED, THEREFORE, BY RESPECTFULLY FOLLOWING THE DECISION OF SUPREME COURT, WHEN DIVERGENT VIEWS ARE EXPRESSED BY DIFFERENT JUDICIAL FORUMS, WE PREFER TO FOLLOW THE VIEWS EXPRESSED BY THE C OURTS WHICH ARE IN FAVOUR OF THE ASSESSEE. 10. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO FOLLOWING THE JUDICIAL PRECEDENTS AS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THERE IS NO DISTINCTION BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION TO PF, AND IF THE TOTAL CONTRIBUTION IS DEPOSITED ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE MADE TOWARDS EMPLOYEES CONTRIBUTION TO PROVIDENT FUND. THE CIT(A) AFTER CONSIDERING THE RELEVANT DETAILS RIGHTLY DELETED THE ADDITIONS MADE BY THE A.O. WE DO NOT SEE ANY REASONS TO INTERFERE WITH THE ORDER OF THE CIT(A). HENCE, WE INCLINED TO UPHOLD THE CIT(A) ORDER AND DISMISS THE APPEAL FILED BY THE REVENUE. 8 . THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA), WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD.CIT(A). THUS, THIS APPEAL FILED BY THE REVENUE IS DISMISSED. 9. THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN SUPPORT OF THE ORDER OF THE LD. CIT(A). IN VIEW OF OUR DECISION ABOVE, THE CROSS OBJECTION FILED BY THE ASSESSEE H AS BECOME INFRUCTUOUS AND IS DISMISSED ACCORDINGLY . 7 ITA NO. 405/VIZ/2018 C.O.NO. 104/VIZ/2018 ( M/S. EASTERN POWER DISTRIBUTION CO. LTD. ) 10 . IN THE RESULT, APPEAL FILED BY THE REVENUE AS WELL AS C.O. FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 22 ND DAY OF NOV ., 201 8 . SD/ - SD/ - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22 ND NOVEMBER , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE M/S. EASTERN POWER DISTRIBUTION COMPANY OF ANDHRA PRADESH LTD., P & T COLONY, VISAKHAPATNAM. 2. THE REVENUE ACIT, CIRCLE - 3(1), VISAKHAPATNAM. 3. THE PR. CIT - 1, VISAKHAPATNAM. 4. THE CIT(A) - 10, HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.