ITO, Jaipur V. PROFESSIONAL H R SERVICES PVT. LTD., Jaipur

ITA 1120/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5592 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 16-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI D
• Assessee Lawyers: RAJEEV SOGANI C A DHK
• Section: 43B

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 1120/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 THE ITO WARD- 6(1), JAIPUR CUKE VS. M/S. PROFESSIONAL H.R. SERVICES (P) LTD. 1/1081, MALVIYA NAGAR, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAFCP 3030 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY: SMT. POONAM RAI, DCIT-DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI RAJEEV SOGANI, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/02/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22 /02/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-2 , JAIPUR DATED 26-10-2016 FOR THE ASSESS MENT YEAR 2013-14 RAISING FOLLOWING GROUNDS OF APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)-II, JAIPUR HAS ERRED IN:- (I) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DEL ETING ADDITION OF RS. 40,04,259/- MADE FOR DEPOSITING THE ITA NO.1120/JP/2016 THE ITO,WARD- 6(1), JAIPUR VS. M/S. PROFESSIONAL H. R. SERVICES (P) LTD. , JAIPUR 2 EMPLOYEES CONTRIBUTION TO PF & ESI BEYOND THE PRES CRIBED TIME LIMIT PROVIDE IN THE RESPECTIVE ACT. (II). WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT EMPLOYEES CONTRIBUTION TO PF & ESI ARE GOVER NED BY THE PROVISIONS OF SECTION 43B AND NOT BY SECTION 36 (10)(VA) R.W.S. 2(24)(X) OF THE I.T. ACT. 2.1 APROPOS GROUND NO. 1 AND 2 OF THE REVENUE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 2.3 I HAVE PERUSED THAT FACTS OF THE CASE, THE ASSESSMENT ORDER AND THE SUBMISSION OF THE APPELLA NT. ADMITTEDLY, EMPLOYEES CONTRIBUTION TO ESI AND PF HAS BEEN PAID BY THE APPELLANT, IN ALL INSTANCES, BEFOR E THE DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1). THI S FACT IS THEREFORE, NOT IN DISPUTE. IN VIEW OF THE JUDGMENTS OF THE RAJASTHAN HIGH COURT IN THE CASE JAIPUR VIDHYUT VIT HRAN NIGAM LTD., 265 CTR 62 ( RAJ.), CIT VS. STATE BANK OF BIKANER & JAIPUR (2014) 99 DTR 131 ( RAJ.) AND ITAT , JAIPUR, IN THE CASE OF THE ASSESSEE, THE CLAIM OF T HE APPELLANT IS ALLOWABLE. ACCORDINGLY, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IS DIRECTED TO BE DELETED. THIS G ROUND IS ALLOWED . 2.2 DURING THE COURSE OF HEARING, THE LD. DR RELIED ON THE ORDER AO. 2.3 ON THE OTHER HAND, THE LD. AR OF ASSESSEE SUPPO RTED THE ORDER OF THE LD. CIT(A). 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS CASE, THE AO NOTICED D URING ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAD FAILED TO DEPOSI T EPF AMOUNTING TO RS. ITA NO.1120/JP/2016 THE ITO,WARD- 6(1), JAIPUR VS. M/S. PROFESSIONAL H. R. SERVICES (P) LTD. , JAIPUR 3 33,58,280/- AND ESI AMOUNTING TO RS. 6,45,979/-, TO TALING TO RS. 40,04,259/- ON OR BEFORE THE PRESCRIBED DUE DATES. HENCE, THE AO IN TERMS OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE I.T. ACT DISALLOWED THE AMOUNT OF RS. 40,04,259/- AND ADDED THE SAME T O THE TOTAL INCOME OF THE ASSESSEE WHICH HAS BEEN DELETED BY THE LD. CIT( A) IN FIRST APPEAL. THE REVENUE IS IN APPEAL BEFORE THIS BENCH PRAYING THA T THE LD. CIT(A) HAS ERRED IN DELETING THE AMOUNT OF RS. 40,04,259/- DI SALLOWED BY THE AO. IT IS OBSERVED THAT THAT SUCH ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT JAIPUR BENCH IN THE CASE OF IT O VS. M/S. S. BROTHERS FACILITIES MANAGEMENT IN ITA NO. 957/JP/20 16 FOR THE ASSESSMENT YEAR 2013-14 VIDE ORDER DATED 5 /01/2017 BY OBSERVING AS UNDER:- 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. I HAVE GONE THROUGH THE ORDER OF THE LD. CIT(A) AND THE CASE LAWS SUBMITTED BEFORE THE L D. CIT(A) WHICH FINDS FAVOUR OF THE ASSESSEE. IT MAY FURTHER BE NOTED THAT SUCH ISSUE HAS ALSO BEEN DECIDED BY THE ITAT, COOR DINATE BENCH, JAIPUR IN FAVOUR OF THE ASSESSEE VIDE ITS ORDER DA TED 27-09-2016 IN THE CASE OF ACIT VS. SHRI SHAILENDRA GARG, C/O M/S. GARMENT CRAFT INDIA (P) LTD. (ITA NO. 804/JP/2015 FOR THE ASSESSM ENT YEAR 2010- 11). IT MAY BE FURTHER NOTED THAT THE HON'BLE HON' BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. UDAIPUR DUGDH UTP ADAK SAHAKARI SANGH LTD. (2014) 265 CTR 59 HAD CONSIDERE D THIS ISSUE IN DETAIL AT PARA 7 TO 9 OF ITS ORDER AS UNDER:- ITA NO.1120/JP/2016 THE ITO,WARD- 6(1), JAIPUR VS. M/S. PROFESSIONAL H. R. SERVICES (P) LTD. , JAIPUR 4 7. FURTHER, THE HON'BLE SUPREME COURT IN CIT V. V INAY CEMENT LTD. [2009] 313 ITR (ST.) 1 (SC) WHILE DISMISSING THE SPECIAL LEAVE PETITION PREFERRED BY THE REVENUE AGA INST THE JUDGMENT OF THE GAUHATI HIGH COURT OBSERVED AS UNDE R : IN THE PRESENT CASE, WE ARE CONCERNED WITH THE LA W AS IT STOOD PRIOR TO THE AMENDMENT OF SECTION 43B. IN THE CIRCUMSTANCES THE ASSESSEE WAS ENTITLED TO CLAIM TH E BENEFIT IN SECTION 43B FOR THAT PERIOD PARTICULARLY IN VIEW OF THE FACT THAT HE HAS CONTRIBUTED TO PROVIDENT FUND BEFORE FI LING OF THE RETURN.' 8. FOLLOWING THE OBSERVATIONS OF THE HON'BLE SUPREM E COURT IN VINAY CEMENT (SUPRA), THE DELHI HIGH COURT IN CI T V. AIMIL LTD. [2010] 321 ITR 508 (DELHI) HELD AT PAGE 518 AS UNDER : 'WE MAY ONLY ADD THAT IF THE EMPLOYEES' CONTRIBUTIO N IS NOT DEPOSITED BY THE DUE DATE PRESCRIBED UNDER T HE RELEVANT ACTS AND IS DEPOSITED LATE, THE EMPLOYER N OT ONLY PAYS INTEREST ON DELAYED PAYMENT BUT CAN INCUR PENA LTIES ALSO, FOR WHICH SPECIFIC PROVISIONS ARE MADE IN THE PROVIDENT FUNDS ACT AS WELL AS THE EMPLOYEES' STATE INSURANCE ACT. THEREFORE, THE ACT PERMITS THE EMPLOYER TO MAKE THE DEPOSIT WITH SOME DELAYS, SUBJECT TO THE AFORESAID CONSEQUE NCES. IN SO FAR AS THE INCOME-TAX ACT IS CONCERNED, THE ASSE SSEE CAN GET THE BENEFIT IF THE ACTUAL PAYMENT IS MADE BEFOR E THE RETURN IS FILED, AS PER THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN VINAY CEMENT [2009] 313 ITR (ST.) 1 (SC).' 9. IN VIEW OF THE SETTLED LEGAL POSITION, THE APPEA L PREFERRED BY THE REVENUE HAS NO SUBSTANCE AND THE SAME IS, TH EREFORE, DISMISSED. NO COSTS. IN VIEW OF THE ABOVE FACTS, CIRCUMSTANCES OF THE CA SE AND THE DECISIONS MENTIONED ABOVE, I FIND NO REASON TO INTE RFERE WITH THE ITA NO.1120/JP/2016 THE ITO,WARD- 6(1), JAIPUR VS. M/S. PROFESSIONAL H. R. SERVICES (P) LTD. , JAIPUR 5 ORDER OF THE LD. CIT(A). THUS THE APPEAL OF THE REV ENUE IS DISMISSED. IN VIEW OF THE ABOVE DELIBERATIONS AND RESPECTFULLY FOLLOWING THE ORDERS OF HON'BLE JURISDICTIONAL HIGH COURTS IN THE CASES OF CIT VS. JVVNL 265 CTR 62 (RAJ), AND CIT VS. STATE BANK OF BIKANER & J AIPUR (2014), 99 DTR 131 (SUPRA) AND ALSO THE ORDER OF ITAT JAIPUR B ENCH (SUPRA), I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CI T(A) ON THE ISSUE IN QUESTION. THUS GROUND NO. 1 AND 2 OF THE REVENUE AR E DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 /02/ 2017. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22 /02/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 6(1), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S. PROFESSIONAL H.R. SERVICES (P ) LTD. JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 1120/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR