Sun Business Solutions Pvt. Ltd., CHENNAI V. DCIT, CHENNAI

CO 182/CHNY/2016

• Counselvise Citation: [2017] 119 COUNSELVISE.COM (IT) 3438 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 15-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N DEVANATHAN
• Assessee Lawyers: ASISH TRIPATHI
• Section: 43B; 143(3)

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER & SHRI DUVVURU R L REDDY , JUDICIAL MEMBER ./ I T.A. NO. 2850/MDS/2016 / ASSESSMENT YEAR :201 2 - 1 3 & C.O. NO. 1 82/MDS/2016 [IN I.T.A. NO. 2850 /MDS/201 6 ] THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6 ( 2 ), 121, M.G. ROAD, 7 TH FLOOR, CHENNAI 600 034 . VS. M/S. SUN BUSINESS SOLUTIONS P. LTD., NO. 4/1017, 3 RD CROSS STREET, 9 TH LINK, NEHRU NAGAR, KOTTIVAKKAM, CHENNAI 600 041. [PAN:AA P C S2049R ] ( APPELLANT ) ( RESPONDENT /CROSS OBJECTOR ) / APPELLANT BY : SHRI ASISH TRIPATHI , JCIT / RESPONDENT BY : SHRI N. DEVANATHAN, ADVOCATE / DATE OF HEARING : 0 5 . 0 9 .201 7 / DATE OF P RONOUNCEMENT : 21 .09 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH IS APPEAL PREFERRED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 15 , CHENNAI DATED 1 4 . 07 .201 6 RELEVANT TO THE ASSESSMENT YEAR 20 12 - 1 3 . THE ONLY EFFECTIVE GROUN D RAISED IN THE APPEAL OF THE REVENUE IS THAT THE LD. CIT(A) HAS ERRED IN DIRECTING TO DELET E THE I.T.A. NO. 2850 /M/1 6 & C.O. NO . 1 82 /M/ 1 6 2 DISALLOWANCE MADE UNDER SECTION 36 ( I ) (VA) R.W.S. 2(24)(X) BEING PAYMENT OF PF AND ESI COLLECTED FROM EMPLOYEES BEYOND THE DUE DATE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN BUSINESS SUPPORT SERVICES AND FILED ITS RETURN OF INCOME ON 28 .0 9.2012 ADMITTING A TOTAL INCOME OF . 9 8 , 7 1 , 750 / - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED FROM FORM 3CD THAT THE ASS ESSEE HAS NOT PAID THE EMPLOYEE S CONTRIBUTION TOWARDS ESI AND PF WITHIN THE DUE DATES PRESCRIBED AS PER THE RESPECTIVE ACTS. THE TOTAL AMOUNT OF SUCH DELAYED PAYMENTS OF EMPLOYEE S CONTRIBUTION TOWARDS ESI AND PF ARE .6,50,976/ - AND .25,29,655/ - RESPECT IVELY . HENCE, THE ASSESSING OFFICER DISALLOWED THE DELAYED PAYMENTS OF EMPLOYEE S CONTRIBUTION TOWARDS ESI AND PF UNDER SECTION 36(1)(VA) R.W.S. 2(24)(X) OF THE RESPECTIVE ACTS AND COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. 3. ON APPEAL, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND BY FOLLOWING THE DECISION IN THE CASE OF CIT V. INDUSTRIAL SECURITY AND INTELLIGENCE INDIA PVT. LTD. IN TCA NOS. 585 & 586 OF 2015 & M.P. NO. 1 OF 2015 DATED 24.07.2015, THE LD. CIT(A) DELETED THE ADDIT ION MADE ON THIS ACCOUNT. 4. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE MAIN CONTENTION OF THE LD. DR IS THAT THE DEPARTMENT HAS NOT ACCEPTED THE I.T.A. NO. 2850 /M/1 6 & C.O. NO . 1 82 /M/ 1 6 3 DECISION IN THE CASE OF CIT V. INDUSTRIAL SECURITY AND INTELLIGENCE INDIA PVT. LTD. (SUPRA ) AND A REVIEW PETITION HAS BEEN FILED BEFORE THE HON BLE HIGH COURT AND THEREFORE, PLEADED THAT THE ORDER OF THE LD. CIT(A) SHOULD BE REVERTED AND RESTORED THAT OF THE ASSESSING OFFICER. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE STRONGLY SUPPORT ED THE ORDER PASSED BY THE LD. CIT(A). MOREOVER, IN SUPPORT OF THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST THE APPEAL FILED BY THE DEPARTMENT. 5. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. SINCE THE ASSESSEE HAS NOT REMITTED THE CONTRIBUTION OF EMPLOYEES TOWARDS PF AND ESI BEFORE DUE DATE, THE ASSESSING OFFICER HAS HELD THAT THE ASSESSEE DOES NOT QUALIFY FOR CLAIMING DEDUCTION UNDER SECTION 36(1)(VA) OF THE ACT TO AVAIL THE BENEFIT UNDER SECTION 43B OF THE ACT. BY FOLLOWING THE DECISION IN THE CASE OF CIT V. INDUSTRIAL SECURITY AND INTELLIGENCE INDIA PVT. LTD. IN TCA NOS. 585 & 586 OF 2015 & M.P. NO. 1 OF 2015, THE LD. CIT(A) DELETED THE ADDITION MADE ON THIS ACCOUNT. IN THIS CASE, I T IS NOT DISPUTED BY THE REVENUE THAT THE ASSESSEE HAS NOT PAID THE EMPLOYEES CONTRIBUTION RECEIVED BY IT BEFORE THE DUE DATE OF FILING OF THE RETURN. VARIOUS COURTS INCLUDING THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. INDUSTRIAL SECURITY AND INTELLIGENCE INDIA PVT. LTD. (SUPRA) HAS HELD THAT THERE CAN BE NO DEEMED ADDITION UNDER SECTION 36(1)(VA) R.W.S. 2(24)(X) OF THE ACT, IF THE IMPUGNED AMOUNT HAS BEEN PAID I.T.A. NO. 2850 /M/1 6 & C.O. NO . 1 82 /M/ 1 6 4 BEFORE THE DUE DATE OF FILING OF THE RETURN. THUS, RE SPECTFULLY FOLLOWING THE ABOVE DECISION, THE LD. CIT(A) HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THE TRIBUNAL HAS ALSO FOLLOWED THE ABOVE DECISION OF THE HON BLE MADRAS HIGH COURT IN DECIDING SIMILAR ISSUE. IN VIEW OF THE ABOVE, WE FIND NO R EASON TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE AND THUS, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 6. COMING TO THE CROSS OBJECTION, IN SUPPORT OF THE ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE HAS FILED THIS CROSS OBJECT ION. SINCE WE HAVE DISMISSED THE APPEAL FILED BY THE REVENUE ON MERITS, THE CROSS OBJECTION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS AND ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THE 21 ST SEPTEMBER , 201 7 AT CHENNAI. SD/ - SD/ - ( ABRAHAM P. GEORGE ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 21 . 0 9 .201 7 VM/ - / COPY TO: 1. / APPELLAN T , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.