DCIT, Bangalore V. M/s Maini Material Movement Pvt. Ltd., Bangalore

ITA 1049/BANG/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95382 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUSAN MATEW
• Section: 43B; 260A

Judgement Text

ITA.1049/BANG/2015 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'C', BANGALORE BEFORE SHRI. ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI. VIJAYPAL RAO, JUDICIAL MEMBER I.T.A NO.1049/BANG/2015 (ASSESSMENT YEAR : 2008-09) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE -12(1), BANGALORE .. APPELLANT V. M/S. MAINI MATERIAL MOVEMENT P. LTD, 131, 6 TH FLOOR, DEVATHA PLAZA, RESIDENCY ROAD, BANGALORE .. RESPONDENT PAN : AABCM8922D ASSESSEE BY : MS. SUSAN MATEW, CA REVENUE BY : SHRI. SUNIL KUMAR AGARWALA, JCIT HEARD ON : 24.11.2015 PRONOUNCED ON : 27.11.2015 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY REVENUE ITS GRIEVANCE IS T HAT CIT (A) HAD ALLOWED CLAIM OF THE ASSESSEE U/S.36(1)(VA) OF THE INCOME-TAX ACT, 1961 (THE ACT IN SHORT), THOUGH ASSESSEE DEFAULTED IN REMITTING THE EMPLOYEES ITA.1049/BANG/2015 PAGE - 2 CONTRIBUTION TOWARDS PF AND ESI WITHIN THE DUE DATE MENTIONED IN THE RESPECTIVE STATUTES. 02. CASE OF THE REVENUE IS THAT EMPLOYEES CONTRIBUT ION IS DIFFERENT FROM EMPLOYERSCONTRIBUTION. AS PER THE REVENUE, IF EMP LOYEES CONTRIBUTIONIS NOT REMITTED WITHIN THE DUE DATES THEN BY VIRTUE OF SECTION 36(1)(VA) OF THE ACT, CLAIM FOR DEDUCTION COULD NOT BE ALLOWED. 03. WE FIND THAT THERE IS A DELAY OF FOUR DAYS IN F ILING THIS APPEAL. AN AFFIDAVIT HAS BEEN FILED BY THE REVENUE STATING THE REIN THE REASONS FOR THE DELAY. WE ARE CONVINCED WITH THE REASONS STATED TH EREIN. WE CONDONE THE DELAY OF FOUR DAYS IN FILING THE APPEAL. 04. WE HAVE HEARD THE RIVAL CONTENTIONS. WHAT WE F IND IS THAT CIT (A) HAD FOLLOWED THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. ANZ INFORMATION TECHNOLOGY (P) LTD [(2010 ) 189 ITR 391]. RELEVANT PART OF THE JUDGMENT IS REPRODUCED HEREUND ER : APPEAL BY THE REVENUE UNDER SECTION 260A OF THE AC T. QUESTIONS OF LAW RAISED IN THIS APPEAL ARE AS UNDER: '(1)WHETHER THE APPELLATE AUTHORITIES WERE CORRECT IN HOLDING THAT THE CONTRIBUTION MADE TOWARDS PROVIDENT FUND BY THE EMPLOYER BELATEDLY AND CONTRIBUTION TOWARDS ESI CONTRIBUTION I.E., BEYOND ITA.1049/BANG/2015 PAGE - 3 THE STIPULATED PERIOD PROVIDED UNDER THE PROVIDENT FUND ACT, IS AN ALLOWABLE DEDUCTION IN VIEW OF SECTION 43B OF THE A CT ? (2)WHETHER THE APPELLATE AUTHORITIES WERE CORRECT I N HOLDING THAT THE DEPOSIT MADE BY THE EMPLOYER OF THE EMPLOYEES CONTRIBUTION BELATEDLY AND CONTRIBUTION TOWARDS ESI CONTRIBUTION I.E., BEYOND THE STIPULATED PERIOD UNDER THE INCOME-TAX ACT AND UNDER THE PROVIDENT FUND ACT AND EMPLOYEES STATE INSURANCE AC T CANNOT BE TREATED AS THE INCOME OF THE ASSESSEE UNDER SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) IN VIEW OF SECTION 43B OF THE ACT ?' 3. SRI ARAVIND, LEARNED COUNSEL APPEARING FOR THE A PPELLANT FAIRLY SUBMITS THAT WHILE ANSWERING SIMILAR QUESTIONS, A D IVISION BENCH OF THIS COURT HAS ALREADY TAKEN A VIEW AGAINST THE REVENUE IN ITA NOS. 1087 AND 1088 OF 2006 AND JUDGMENT RENDERED IN THIS CASE OF CIT V. SABARI ENTERPRISES [2008] 298 ITR 141 (KAR.) VIRTUALLY COVERS THE PRESENT CASE ALSO. 4. HOWEVER, THE LEARNED COUNSEL WOULD SUBMIT THAT T HE REVENUE HAVING NOT ACCEPTED THE CORRECTNESS OF THE DECISION HAS SOUGHT FOR GRANT OF LEAVE BEFORE THE SUPREME COURT AND AS OF N OW SPECIAL LEAVE PETITION IS PENDING BEFORE THE SUPREME COURT AND THEREFORE, SUBMITS THIS MATTER CAN BE ADMITTED AND KEPT PENDIN G AWAITING THE DECISION OF THE SUPREME COURT. 5. WHILE THE SPECIAL LEAVE PETITION IS NOT YET EXAM INED AND LEAVE ITSELF IS NOT GIVEN, WE DO NOT FIND IT PROPER TO AD MIT AND KEEP THIS APPEAL PENDING IN THIS COURT ON THE PREMISE OF A SP ECIAL LEAVE PETITION BEING PENDING EXAMINATION BY THE SUPREME C OURT AND WOULD RATHER DISMISS THE APPEAL AT THE ADMISSION ST AGE ITSELF FOLLOWING THE JUDGMENT OF THE EARLIER DIVISION BENC H OF THIS COURT IN THE CASE OF SABARI ENTERPRISES (SUPRA). 05. MAY BE IT IS TRUE THAT HONBLE JURISDICTIONAL H IGH COURT HAD FOLLOWED ITS EARLIER JUDGMENT IN THE CASE OF CIT V. SABARI ENTERPRISES (298 ITR 141), WHICH DEALT WITH AN ISSUE IF EMPLOYERSCONTRIBUTION . NEVERTHELESS, WE ARE ITA.1049/BANG/2015 PAGE - 4 OF THE OPINION THAT THIS TRIBUNAL BEING AN INFERIOR FORUM TO THE HIGH COURT, HAS TO FOLLOW THE JUDGMENT OF HONBLE JURISDICTIONA L HIGH COURT. CIT (A) WAS JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE . WE DO NOT FIND ANY REASON TO INTERFERE. 06. IN THE RESULT, APPEAL OF THE REVENUE STANDS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH DAY OF N OVEMBER, 2015. SD/- SD/- (VIJAYPAL RAO) (ABRAH AM P GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MCN COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR