THE ALWAR CENTRAL CO-OPERATIVE BANK LTD., Alwar V. ACIT, Alwar

ITA 1016/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9718 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 21-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITHVIRAJ MEENAADDL CIT DHK
• Assessee Lawyers: P C PARWALCA
• Section: 43B; 143(3); 139

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. 1016/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14. M/S THE ALWAR CENTRAL CO - OPERATIVE BANK LTD. HOPE CIRCUS, ALWAR. CUKE VS. THE ACIT CIRCLE-2, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABAT 4891 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P. C. PARWAL(CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI PRITHVI RAJ MEENA(ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.03.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08/03/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A) ALWAR, DATED 07.10.2016 PERTAINING TO ASSESSMENT YEAR 2013 -14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CO NFIRMING THE DISALLOWANCE OF RS. 13,82,959/- BEING EMPLOYEESS CONTRIBUTION O F PF U/S 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE IT ACT, 1961 IGNORING THAT THE SAME IS DEPOSITED BEORE THE END O THE YEA AND THE ISSUE IS COVERED BY THE DECISION OF RAJASTHAN HIGH COURT IN CASE OF CIT VS. STATE BANK OF BIKANER & JAIPUR 363 ITR 70, CIT VS. JAIPUR VIDYUT VITRAN NIGAM LTD. 363 ITR 307 AND CIT VS UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD, 366 ITR 163. 2. THE ASSESSEE CRAVES RIGHT TO ADD, ALTER OR AMEND AN Y OF THE GROUNDS OF THE APPEAL. 3. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. 2 ITA NO. 1016/JP/2016 M/S THE ALWAR CENTRAL CO-OPERATIVE BANK LTD. 1. ONLY EFFECTIVE GROUND IS AGAINST CONFIRMATION OF DISALLOWANCE OF RS. 13,82,959/- BEING EMPLOYEES CONTRIBUTION PROVIDENT TO PF. 2. BRIEFLY, STATED THE FACTS ARE THAT THE CASE OF T HE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 143(3) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT) WAS F RAMED VIDE ORDER DATED 5 TH JAN, 2016. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF INVESTMENT IN LIC FOR LEAVE ENCASHMENT OF RS. 30 LAKHS. ADDITION ON ACCOUNT OF INTEREST IN INCOME TAX REFUND OF RS. 22, 50,035/- RECEIVED BY THE ASSESSEE. THE ASSESSING OFFICER MADE ADDITION ON I NTEREST OF RS. 2,53,682/- RECEIVED ON THE INCOME TAX REFUND. FURTHER THE ASS ESSING OFFICER MADE DISALLOWANCE OF EMPLOYEES CONTRIBUTION TOWARDS PF ON ACCOUNT OF LATE PAYMENT. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOW THE APPEAL . THEREBY, HE SUSTAINED THE ADDITION OF RS. 13,82,959/- MADE ON ACCOUNT OF DIS ALLOWANCE OF EMPLOYEES CONTRIBUTION DEPOSITED AS DEPOSITED LATE. AGGRIEVE D BY THIS, THE ASSESSEE IS IN PRESENT APPEAL BEFORE THIS TRIBUNAL. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS COVERED BY THE DECISIONS OF THE RAJASTHAN HIGH COUR T IN THE CASE OF CIT VS. STATE BANK OF BIKANER & JAIPUR AND JAIPUR VIDYUT VITARAN NIGAM LTD. 364 ITR 70(RAJ). 3.1 ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATIV ES OPPOSED THE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 3.2 WE HAVE HEARD THE RIVAL CONTENTION, PERUSED THE MATERIAL AVAILABLE RECORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE ASSESSING OFFICER HAS 3 ITA NO. 1016/JP/2016 M/S THE ALWAR CENTRAL CO-OPERATIVE BANK LTD. MADE ADDITION ON THE GROUND THAT THE CENTRAL BOARD OF DIRECT TAXES VIDE CIRCULAR NO. 22/2015 DATED 17/12/2015 CLARIFIED THAT DEDUCTION I S ALLOWABLE TO THE EMPLOYEES ASSESSEE IF HE DEPOSIT THE EMPLOYER CONTRIBUTION TO WELFARE FUND ON OR BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME IN VIEW O F DECISION HONBLE APEX COURT IN THE CASE OF CIT VS. ALOM EXTURSIONS LTD. THE CBDT FURT HER CLARIFIED THAT THIS CIRCULAR DOES NOT APPLY TO THE CLAIM OF DEDUCTION RELATING T O EMPLOYEES CONTRIBUTION TO WELFARE FUND WHICH ARE GOVERNED BY SECTION 36(1)(VA ) OF THE IT ACT. THIS ISSUE HAS BEEN DECIDED TO THE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT VS. STATE BANK OF BIKANER AND JAIPUR 363 ITR 70 (RAJ) WHEREIN THE HON BLE HIGH COURT AS HELD AS UNDER:- A CONJOINT READING OF THE PROVISO TO SECTION 43B W HICH WAS INSERTED BY THE FINANCE ACT, 1987, MADE EFFECTIVE FROM APRIL 1, 198 8, THE WORDS NUMBERED A CLAUSED (A), (C), (D),(E) AND (F), ARE OMITTED FROM THE ABOVE PROVISO AND, FURTHER MORE A SECOND PROVISO WAS REMOVED BY THE FI NANCE ACT, 2003, THEREFORE, THE DEDUCTION TOWARDS THE EMPLOYERS CON TRIBUTION, IF PAID, PRIOR TO DUE DATE OF FILING OF THE RETURN CAN BE CLAIMED BY THE ASSESSEE. IN OUR VIEW, THE EXPLANATION APPENDED TO SECTION 36(1)(VA) OF TH E ACT FURTHER ENVISAGE THAT THE AMOUNT ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE ADMISSIBLE AT THE TIME OF SUBMITTING RETURN OF THE INCOME UNDER SECTION 139 OF THE ACT IN RESPECT OF THE PREVIOUS YEAR CAN BE C LAIMED BY THE ASSESSEE FOR DEDUCTION OUT OF THEIR GROSS TOTAL INCOME. IT IS A LSO CLEAR THAT SECTION 43B STARTS WITH A NOTWITHSTANDING CLAUSE AND WOULD THUS OVERRIDE SECTION 36(1)(VA) AND IF READ IN ISOLATION SECTION 43B WOUL D BECOME OBSOLETE. ACCORDINGLY, CONTENTION OF COUNSEL FOR THE REVENUE IS NOT TENABLE FOR THE REASON AFORESAID THAT DEDUCTIONS OUR OF THE GROSS I NCOME OR PAYMENT OF TAX AT THE TIME OF SUBMISSION OF RETURN UNDER SECTION 1 39 IS PERMISSIBLE ONLY IF THE STATUTORY LIABILITY OF PAYMENT OF PF OR OTHER CONTR IBUTION REFERRED TO IN CLAUSE (B) ARE PAID WITHIN THE DUE DATE UNDER THE RESPECTI VE ENACTMENTS BY THE ASSESSEE AND NOT UNDER THE DUE DATE OF FILING OF RE TURN. RESPECTFULLY FOLLOWINGS THE JUDGMENT OF HONBLE JUR ISDICTIONAL HIGH COURT, WE DIRECT THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE. 4 ITA NO. 1016/JP/2016 M/S THE ALWAR CENTRAL CO-OPERATIVE BANK LTD. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 08 /03/20 17. 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:- 08 /03/2017. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S THE ALWAR CENTRAL CO-OPERATIV E BANK LTD. 2. THE RESPONDENT- THE ACIT CIRCLE-2, ALWAR. 3. THE CIT, 4. THE CIT (A) 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1016/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR