N.Nageswara Rao & Co., , Visakhapatnam V. Assistant Commissioner of Income Tax, Circle-5(1), , Visakhapatnam

CO 15/VIZ/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5873 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 10-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D V SUBBA RAO

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 4 8 7 /VIZ/2018 ( / ASSESSMENT YEAR: 20 13 - 1 4 ) THE ASST. COMMISSIONER OF INCOME TAX CIRCLE - 5(1) VISAKHAPATNAM VS. N NAGESWARA RAO & CO., 1 - 361, PLOT NO.9 CO - OPERATIVE SOCIETY LAYOUT VISAKHAPATNAM [PAN : AA EFN7148N ] ( / APPELLANT) ( / RESPONDENT) CROSS OBJECTION NO. 1 5 /VIZ/2019 ARISING OUT OF I .T.A.NO. 4 8 7 /VIZ/2018 ( / ASSESSMENT YEAR: 20 13 - 1 4 ) N NAGESWARA RAO & CO., 1 - 361, PLOT NO.9 CO - OPERATIVE SOCIETY LAYOUT VISAKHAPATNAM [PAN : AA EFN7148N ] VS. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE - 5(1) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / REVENUE BY : SHRI D.V.SUBBA RAO, DR / ASSESSEE BY : SHRI G.V.N.HARI, AR / DATE OF HEARING : 25 . 01. 201 9 / DATE OF PRONOUNCEMENT : 30 . 01 .201 9 2 I.T.A. NO . 4 8 7 /VIZ/201 8 N.NAGESWARA RAO & CO. ., VISAKHAPATNAM / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: TH IS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) [CIT(A) ] - 9 , HYDERABAD AND CROSS OBJECTION FILED BY THE ASSESSEE IN SUPPORT OF THE ORDER OF THE LD.CIT(A) VIDE I.T.A.NO. 10327/ACIT,CIRCLE - 5(1)/2017 - 18 DATED 22.06.2018 FOR THE A SSESSMENT Y EAR (A.Y.) 20 13 - 14 . 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ADDITION MADE BY THE ASSESSING OFFICER (AO) FOR THE DELAY IN REMITTING THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND (PF )AND ESI TO THE RESPECTIVE ACCOUNTS. IN THE INSTANT CASE, THE ASSESSEE REMITTED THE EMPLOYEES CONTRIBUTION TO PF A/C AND ESI BEYOND THE DUE DATE SPECIFIED U/S 36(1)(VA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS ACT), HOWEVER, THE SAME WAS REMIT TED BEFORE FILING THE RETURN OF INCOME. IT IS OBSERVED FROM THE ASSESSMENT ORDER THAT THERE WAS DELAY IN REMITTING THE PF CONTRIBUTION AND ESI BY THE ASSESSEE AS UNDER : 3 I.T.A. NO . 4 8 7 /VIZ/201 8 N.NAGESWARA RAO & CO. ., VISAKHAPATNAM MONTH PF AMOUNT PAYMENT DT. MONTH ESI AMOUNT PAYMENT DT. JULY, 2012 10,325 21.08.2012 JULY, 2012 1,912 21.08.2012 SEP, 2012 8,915 24.12.2012 SEP, 2012 1,641 24.12.2012 OCT, 2012 9,608 24.12.2012 OCT, 2012 1,641 24.12.2012 NOV, 2012 9,608 24.12.2012 NOV, 2012 1,363 24.12.2012 DEC, 2012 8,915 25.06.2013 DEC, 2012 1,875 19.03.2013 JAN, 2013 8,915 25.06.2013 JAN, 2013 1,363 19.03.2013 FEB, 2013 8,693 25.06.2013 MAR, 2013 9,345 25.06.2013 MAR 2013 1,956 21.06.2013 TOTAL 74,324 TOTAL 11,751 SINCE THE ASSESSEE REMITTED THE EMPLOYEES PF CONTRIBUTION AND ESI BEYOND THE DUE DATE SPECIFIED U/S 36(1)(VA) OF THE ACT, THE AO MADE THE DISALLOWANCE OF RS.86,075/ - INCOME U/S 36(1)(V)R.W.S 2(24) (X) OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO, THE A SSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE AO FOLLOWING THE ORDER OF THIS TRIBUNAL IN THE CASE OF EASTERN POWER DISTRIBUTION COMPANY OF AP LTD. FOR THE SAKE OF CLARITY AND CONVENIENCE WE EXTRACT RELEVANT PAR T OF THE ORDER OF THE LD.CIT(A) IN PARA NO.4.1 AND 4.2 WHICH READS AS UNDER : 4 I.T.A. NO . 4 8 7 /VIZ/201 8 N.NAGESWARA RAO & CO. ., VISAKHAPATNAM 4.1. ON THE SECOND ISSUE OF DELAYED PAYMENT OF PF & EST BUT BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME THE ADDITIONAL GROUND FILED IS ADMITTED AND IS ADJUDICATED IN THE LIGHT OF DECISION GIVEN BY HONBIE JURISDICTIONAL ITAT, VISAKHAPATNAM IN THE CASE OF TD/S. V. DHANA REDDY & COMPANY SHIPPING SERVICES, VISAKHAPATNAM ITA NO.527/VIZAG/2017. AND THE HON'BLE ITAT VIZAG IN ITA NO. 505/2017 IN THE CASE OF CHANDANA BROTHERS SHOPP ING MALL, VISAKHAPATNAM HAS RELIED ON THE CASE OF SMUT VS. MJS. EASTERN POWER DISTRIBUTION COMPANY LTD IN ITA NO. 374/VIZAG/2017 DATED 20.09.2017 IN THE CITED DECISION, THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE FOLLOWING ITS OWN ORDER IN THE CASE OF EPDC OF AP LTD., IN ITA NO. 609/VIZAG/2014 WHICH READS AS UNDER: 'WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. THE IDENTICAL ISSUE HAS COME UP BEFORE THIS TRIBUNAL FOR ADJUDICATION OF THE A. Y. 2011 - 12 AND THE FIAT ALLOWED THE APPEAL OF THE ASSESSEE FOLLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF ESSAR TERAOKA PVT LTD VS. DCIT (366 ITR 408) AND THE DECISION OF HONBLE ITAT, HYDERABAD IN THE CASE OF TETRA SOFT INDIA PUT LTD VS. ACIT (2015) (40 ITR TRIBU NAL 470) FOR READY REFERENCE, WE REPRODUCE HERE UNDER THE RELEVANT PARA NO. 10 OF THE TRIBUNAL CITED SUPRA. PARA 10: CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO FOLLOWING THE JUDICIAL PRECEDENCE 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 CONTR IBUTION TO PROVIDENT FUND. THE CIT(A) AFTER CONSIDERING THE RELEVANT DETAILS RIGHTLY DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). HENCE, WE INCLINE TO UPHOLD THE CIT(A) ORDER AND D ISMISS THE APPEAL FILED BY THE REVENUE. RESPECTFULLY FOLLOWING THE DECISION OF THIS TRIBUNAL ON THE ASSESSEE'S OWN CASE IN THE EARLIER YEAR WE UPHOLD THE ORDER OF THE LEARNED CIT AND ALLOW THE APPEAL OF THE ASSESSEE' 4.2. RESPECTFULLY FOLLOWING THE JURISDI CTIONAL ITAT, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE IN RESPECT OF EMPLOYEE S CONTRIBUTION OF PROVIDENT FUN AND ESI PAYMENT AMOUNTING TO RS.86,075/ - . 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATER IAL PLACED ON RECORD. THIS TRIBUNAL HAS TAKEN A CONSISTENT VIEW THAT THE EMPLOYEES 5 I.T.A. NO . 4 8 7 /VIZ/201 8 N.NAGESWARA RAO & CO. ., VISAKHAPATNAM CONTRIBUTION TO PF AND ESI REQUIRED TO BE ALLOWED AS DEDUCTION EVEN IF THE SAME IS PAID BEFORE THE DUE DATE OF FILING THE RETURN U/S 139(1) OF THE ACT. THE TRIBUNAL HAS F OLLOWED THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF ESSAE TERAOKA PVT LTD. VS. DCIT [366 ITR 408] AND THE DECISION OF ITAT, HYDERABAD IN THE CASE OF TETRA SOFT INDIA PVT. TD. VS. ACIT (2015) (40 ITR TRIBUNAL 470) WHILE DELIVERING THE ABOVE RULING. THIS TRIBUNAL HAS HELD THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE IN ITS ORDER IN I.T.A NO.485/VIZ/2018 DATED 25.01.2019. THEREFORE, RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THIS TRIBUNAL SUPRA WE UPHOLD THE ORDER OF THE LD.CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 5. ASSESSEE FILED CROSS OBJECTIONS IN SUPPORT OF THE ORDER OF THE LD.CIT(A). SINCE THE APPEAL OF THE REVENUE IS DISMISSED, CROSS OBJECTION OF THE ASSESSEE BECAME INFRUCTUOUS, HENCE, DISMISSED. 6 . IN THE RESULT, THE APPEAL OF TH E REVENUE AND THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. 6 I.T.A. NO . 4 8 7 /VIZ/201 8 N.NAGESWARA RAO & CO. ., VISAKHAPATNAM O RDER PRONOUNCED IN THE OPEN COURT ON 30 TH J ANUARY , 201 9 . S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 30 .01.2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - N NAGESWARA RAO & CO., 1 - 361, PLOT NO.9 , CO - OPERATIVE SOCIETY LAYOUT , VISAKHAPATNAM 2. / THE REVENUE THE ASST. COMMISSIONER OF INCOME TAX , CIRCLE - 5(1) VISAKHAPATNAM 3. THE PR. COMMISSIONER OF INCOME TAX - 2 , VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME - TAX (APPEALS) - 9, HYDERABAD 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM