DCIT, Bangalore V. M/s Delixus Software India Pvt. Ltd., Tumkur

ITA 1168/BANG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8614 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-02-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 21-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SARAVANAN

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.1168(B)/2015 (ASSESSMENT YEAR : 2007-08) THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2(1) (2), 4 TH FLOOR, RP BHANAVAN, BANGALORE APPELLANT VS M/S DI FORTOFICATION PVT.LTD., NO.6 & 7, AMBADY, 1 ST MAIN, 1 ST CROSS, DOCTORS LAYOUT, B.CHANNASANDRA, BANGALORE-560 043. PAN NO.AACCD4963G RESPONDENT REVENUE BY : SHRI B. SARAVANA N, ADDL.CIT ASSESSEE BY : SHRI RAJITH BALAKRIS HNA, DIRECTOR OF THE ASSESSEE FIRM DATE OF HEARING : 25-02-2016 DATE OF PRONOUNCEMENT : 29-02-2016 O R D E R PER SHRI VIJAY PAL RAO, JM: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 28- 05-2015 OF THE CIT(A)-2, BANGALORE FOR ASSESSMENT Y EAR: 2012-13. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS; 1. THE ORDER OF THE CIT(A) IS CONTRARY TO THE FAC TS AND CIRCUMSTANCES OF THE CASE AND HENCE NOT SUSTAINABLE . ITA NO.1167(BANG)2015 2 2. THE CIT(A) HAS ERRED IN THE DECISION WITH REGAR D TO THE ADDITION U/S 2(24)RWS36(1)(VA) WHICH IS NOT ACC EPTABLE SINCE THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S ESAE T ERAOKA PVT.LTD (ITA NO.480/2012) AND HAS FILED AN SLP BEFO RE THE APEX COURT WHICH IS STILL PENDING. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE CIT(A)A INSOFARAS IT RELATES TO THE ABOVE GROUNDS MAY BE RE VERSED AND THAT OF THE AO MAY BE RESTORED. 4. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR DELETE THE GROUNDS MENTIONED ABOVE. 2. WE HAVE HEARD THE LEARNED DR AS WELL AS THE REPRESENTATIVE/DIRECTOR OF THE ASSESSEE COMPANY AND CONSIDERED THE MATERIAL ON RECORD. 3. AT THE OUTSET, WE NOTE THAT THE CIT(A) HAS DEC IDED THE ISSUE BY FOLLOWING THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT IN THE CASE OF M/S ESSAE TERAOKA PVT.LTD VS DCIT (ITA NO.480/20 12) IN PARA-3.2 TO 3.4 AS UNDER; 3.2 IN ITS WRITTEN SUBMISSIONS FILED AT THE TIME OF APPEAL HEARING, THE ASSESSEE STATES THAT ITS STAND IS SUPPORTED BY JUDICIAL DECISIONS IN M/S ESSAE TER AOKA PVT.LTD VS DCIT (ITA NO.480/2012) A COPY OF WHICH H AS BEEN FURNISHED. ITA NO.1167(BANG)2015 3 3.3 I HAVE CAREFULLY CONSIDERED THE ASSESSEES SUB MISSIONS AND PERUSED THE ASSESSMENT ORDER. IN THE CASE LAW RELIED ON BY THE ASSESSEE (SUPRA), IT HAS BEEN HELD AS UNDER; IN LAW THE PAYMENT OF CONTRIBUTION BY THE EMPLOYER TO THE FUND UNDER THE SCHEME MEANS BOTH EMPLOYERS CONTRIBUTION AND ALSO EMPLOYEES CONTRIBUT ION. WHETHER HE DEDUCTS THE EMPLOYEES CONTRIBUTION OR NO T, IN LAW, HE IS LIABLE TO PAY THE SAID AMOUNT. THOUGH S UCH CONTRIBUTIONS ARE NOT PAID WITHIN THE TIME PRESCRIB ED UNDER THE RELEVANT ACT, IF THOSE CONTRIBUTIONS ARE PAID BEFORE THE DUE DATE PRESCRIBED UNDER SECTION 139(1) OF THE ACT, THE EMPLOYERS SHALL BE ENTITLED TO THE DED UCTIONS AS PROVIDED UNDER SECTION 36(1) OF THE ACT. WHILE EXTENDING SUCH BENEFITS, THE PARLIAMENT HAS NOT MAD E ANY DISTINCTION BETWEEN THE EMPLOYEES CONTRIBUTIO N AND THE EMPLOYERS CONTRIBUTION. 3.4 I FIND MERIT IN THE ASSESSEES SUBMISSIONS SIN CE IT IS COVERED BY THE CASE LAW REFERRED TO ABOVE. RESPECTFULLY FOLLOWING THE DECISION OF THE JURISD ICTIONAL HIGH COURT REFERRED TO ABOVE, I DELETE THE DISALLOW ANCES MADE IN THIS REGARD BY THE AO FOR THE ASSESSMENT YE AR 2012-13. 4. NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NO TICE BY THE REVENUE, EXCEPT RAISING OBJECTION THAT THE REVENUE HAS NOT ACCEPTED THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT. ACCORDINGLY, WHEN THE ISSUE IS COVERED BY THE HONBLE JURISDICTIONAL HIGH COURT, AS RELIED UPON BY ITA NO.1167(BANG)2015 4 THE LEARNED AR, WE DO NOT FIND ANY REASON TO INTERF ERE WITH THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUES IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 29 TH FEBRUARY, 2016. SD/- SD/- (INTURI RAMA RAO) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER D A T E D : 29-02-2016 PLACE: BANGALORE AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER AR, ITAT, BANGALORE