M/S KARNI KEHAR SECURITY CO-OPERATIVE SOCIETY LTD., JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, JAIPUR

CO 39/JPR/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3365 (ITAT-JAIPUR)
• Duration Of Justice: 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 05-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH MEENA
• Assessee Lawyers: P C GODHA C A DHK
• Section: 43B; 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 796/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15. THE ASSTT. COMMISSIONER OF INCOME - TAX CIRCLE-1, JAIPUR. CUKE VS. M/S KARNI KEHAR SECURITY CO - OPERATIVE SOCIETY LTD., 30, CHAND BIHARI NAGAR, KHATIPURA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAAK 5828 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ C.O. NO. 39/JP/2017 ARISING OUT OF ITA NO. 796/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15. M/S KARNI KEHAR SECURITY CO - OPERATIVE SOCIETY LTD., 30, CHAND BIHARI NAGAR, KHATIPURA, JAIPUR CUKE VS. THE ASSTT. COMMISSIONER OF INCOME-TAX CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAAK 5828 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI PREM PRAKASH MEENA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. GODHA (C.A) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20.12.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/12/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM . THIS APPEAL I.E. ITA NO. 796/JP/2017 BY THE REVENU E AND CROSS OBJECTION NO. 39/JP/2017 BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT (A)-I, JAIPUR DATED 09/08/2017 PERTAINING TO ASSESSMENT YE AR 2014-15. 2 ITA & C.O NO. 796/JP/2017 & 39/JP/2017. M/S KARNI KEHAR SECURITY CO-OPERATED SOCIETY LTD., JAIPUR. 2. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO. 796/JP/2017 PERTAINING TO AY 2014-15. THE REVENUE HAS RAISED A SOLITARY GROUND WHICH READ S AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS . 58,24,082/- FOR DEPOSITING OF PF AND ESI BEYOND THE PRESCRIBED TIME DESPITE THE FACT THAT AS PER SECTION 36(1)(VA) READ WITH SECTION 2(2 4)(X) OF THE ACT SHOULD HAVE BEEN DEPOSITED IN TIME AS PRESCRIBED IN THE RELEVANT CASE LAWS? THE APPELLANT CRAVES THE INDULGENCE TO MODIFY, ALTE R, AMEND & ADD ANY OTHER GROUND OF APPEAL. 3. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VI DE ORDER DATED 15/12/2016. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER OBSER VED THAT THE ASSESSEE HAD DEPOSITED THE EPF, ESI CONTRIBUTION OF EMPLOYEES AF TER THE DUE DATE AND MADE DISALLOWANCE OF THE SAME. FURTHER, THE ASSESSING O FFICER DID NOT ALLOW THE LOSS AS CLAIMED BY THE ASSESSEE IN HIS RETURN OF INCOME AND TAKEN RETURN DECLARED AS NIL. AGAINST BOTH OF THESE THE ASSESSEE PREFERRED AN APP EAL BEFORE LD. CIT(A). IN RESPECT OF THE FIRST ADDITION RELATED TO DISALLOWAN CE OF EMPLOYEES CONTRIBUTION TO EPF, ESI WAS DELETED BY THE LD. CIT(A) BY FOLLOWING THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF CIT VS. SBBJ (2014) 265 CTR 471 (RAJ.). HOWEVER, IN RESPECT OF THE OTHER GROUND RELATED T O NOT ALLOWING THE LOSS WAS NOT ADJUDICATED BY THE LD. CIT(A). AGAINS T THE DELETION OF DISALLOWANCE, 3 ITA & C.O NO. 796/JP/2017 & 39/JP/2017. M/S KARNI KEHAR SECURITY CO-OPERATED SOCIETY LTD., JAIPUR. REVENUE IS IN APPEAL AND IN RESPECT OF NOT ADJUDICA TING THE ISSUE OF ALLOWANCE OF LOSS; THE ASSESSEE IS IN CROSS OBJECTION BEFORE THI S TRIBUNAL. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THIS ISSUE IS NO MORE RES-INTEGRA, THE ISSUE HAS ALREADY BEEN DECIDE D IN FAVOUR OF THE ASSESSEE BY THE HONBLE JURISDICTIONAL HIGH COURT RENDERED IN T HE CASE OF CIT VS. SBBJ (SUPRA). 4.1 LD. D/R FAIRLY CONCEDED THE FACT THAT THIS ISSU E HAS BEEN DECIDED AGAINST THE REVENUE. 4.2 WE HAVE HEARD THE RIVAL CONTENTIONS, IN VIEW OF THE FACT THAT HONBLE HIGH COURT OF RAJASTHAN UNDER THE IDENTICAL FACTS IN THE CASE OF CIT VS. SBBJ (SUPRA) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THERE FORE, RESPECTFULLY FOLLOWING THE SAME, WE DO NOT SEE ANY REASON TO INTERFERE INTO TH E FINDING OF THE LD. CIT(A), SAME IS HEREBY AFFIRMED. THUS, THIS GROUND IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 6. NOW, WE TAKE UP ASSESSEES CROSS OBJECTION NO. 39/JP/2017 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF CROSS OBJECTION:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN NOT DETERMINING THE IS SUE RAISED IN GROUND OF APPEAL NO. 2 AS UNDER, THOUGH DISCUSSED BY HIM I N HIS APPEAL ORDER:- 'THAT ALTERNATIVELY AND WITHOUT PREJUDICE TO THE AB OVE, THE LEARNED ASSESSING OFFICER HAS GROSSLY ERRED IN LAW AS WELL AS IN FACTS IN NOT ALLOWING THE DEDUCTION OF RS. 4687862/-, BEING THE AMOUNT OF EMPLOYEES' CONTRIBUTION TO PF U/S 36(1)(VA) OR UNDE R SECTION 43B OF THE I. TAX ACT, 1961 WITHOUT ANY BASIS, WHICH WAS C REDITED BY THE ASSESSEE TO THE EMPLOYEES' ACCOUNT IN THE RELEVANT PROVIDENT FUND ON OR BEFORE THE DUE DATE SPECIFIED UNDER THE SAID SCH EME.' 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN NOT ADJUDICATING THE I SSUE RAISED IN GROUND OF APPEAL NO. 4 AS UNDER, BY HOLDING THAT SINCE, TH E ADDITION MADE BY 4 ITA & C.O NO. 796/JP/2017 & 39/JP/2017. M/S KARNI KEHAR SECURITY CO-OPERATED SOCIETY LTD., JAIPUR. THE AO HAS ALREADY BEEN DELETED IN GROUND OF APPEAL NO. 1, THEREFORE THIS GROUND OF APPEAL BECOMES IN FRUCTUOUS AND ONLY ACADEMIC IN NATURE, HENCE NOT REQUIRED TO BE ADJUDICATED:- 'THAT THE LEARNED ASSESSING OFFICER HAS GROSSLY ERR ED IN LAW AS WELL AS IN FACTS IN TAKING THE INCOME AS PER RETURN OF INCO ME AT RS. NIL AGAINST THE ACTUAL INCOME (LOSS) OF RS. (-) 74907/- WITHOUT ANY BASIS.' 3. THE RESPONDENT CRAVES THE INDULGENCE TO MODIFY, ALTER, AMEND & ADD ANY GROUND OR GROUNDS OF CROSS OBJECTIONS. 7. APROPOS TO GROUND NO. 1, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THE FACT THA T THE EMPLOYEES CONTRIBUTION WAS DEPOSITED BY THE ASSESSEE BEFORE DUE DATE SPECIFIED UNDER THAT SCHEME, IN SUPPORT OF THIS HE DREW OUR ATTENTION TO THE RELEVANT PROVI SION OF LAW. 7.1 ON THE CONTRARY, LD. D/R OPPOSED THE SUBMISSION S. 7.2 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE FACT THE ASSESSEE HAS DEMON STRATED THAT AMOUNT WAS CREDITED WITHIN THE SPECIFIED PERIOD UNDER THAT ACT . THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION. THIS GROUND OF T HE ASSESSEES CROSS OBJECTION IS ALLOWED. 8. GROUND NO. 2 IS AGAINST NOT ADJUDICATING THE ISSUE OF LIABILITY OF LOSS. 8.1 LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT A S PECIFIC GROUND WAS TAKEN BEFORE THE LD. CIT(A) IN SUPPORT OF THIS HE HAS DRA WN OUR ATTENTION TO FORM NO. 35 WHEREIN A SPECIFIC GROUND HAS BEEN TAKEN BY THE ASS ESSEE. 8.2 LD. D/R OPPOSED THE SUBMISSIONS. 8.3 WE HAVE HEARD THE RIVAL CONTENTIONS, WE FIND TH AT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS STATED THAT INCOME AS PER THE RETURN OF INCOME AS NIL BUT IN 5 ITA & C.O NO. 796/JP/2017 & 39/JP/2017. M/S KARNI KEHAR SECURITY CO-OPERATED SOCIETY LTD., JAIPUR. THE SAME ORDER THE ASSESSING OFFICER HAS RECORDED T HAT THE ASSESSEE FILED E-RETURN OF INCOME FOR THE YEAR UNDER APPEAL DECLARING LOSS. U NDER THESE FACTS, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED I N TAKING THE FIGURE AS NIL. HENCE, WE DIRECT THE ASSESSING OFFICER TO TAKE THE FIGURE OF LOSS AS PER THE RETURN OF INCOME. SINCE, THE ASSESSING OFFICER HAS NOT DISALLOWED THE CLAIM OF LOSS IN THE ASSESSMENT ORDER AND WRONGLY TAKEN NIL FIGURE STATING AS PER I NCOME TAX RETURN. THIS GROUND OF THE ASSESSES CROSS OBJECTION IS ALLOWED IN THE TER MS INDICATED HEREIN ABOVE. 9. GROUND NO. 3 IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDIC ATION. 10. IN THE COMBINED RESULT, APPEAL OF THE REVENUE I S DISMISSED AND CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY,THE 22 ND D AY OF DECEMBER 2017. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 22/12/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ACIT, CIRCLE-1, JAIPUR. 2. THE RESPONDENT- M/S KARNI KEHAR SECURITY, JAIPUR . 3. THE CIT 4. THE CIT (A), 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 796/JP/2017 & C.O. NO. 39/JP /2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA & C.O NO. 796/JP/2017 & 39/JP/2017. M/S KARNI KEHAR SECURITY CO-OPERATED SOCIETY LTD., JAIPUR.