ACIT, CHENNAI V. Express Publications (Madurai) Ltd., CHENNAI

ITA 1196/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8913 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURUGABOOPATHY
• Assessee Lawyers: R K V SUNDAR
• Section: 43B

Judgement Text

, / , IN THE INCOME TAX APPELLATE TRIBUNAL B / SMC BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER !./ ITA NO.1196/MDS/2016 # $%# / ASSESSMENT YEAR : 2006-07 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 2(1), CHENNAI - 600 034. V. M/S EXPRESS PUBLICATIONS (MADURAI) LTD., EXPRESS GARDENS, NO.29, 2 ND MAIN ROAD, AMBATTUR INDUSTRIAL ESTATE, CHENNAI - 600 058. PAN : AAACI 0842 D ('(/ APPELLANT) ()*'(/ RESPONDENT) '( + , / APPELLANT BY : SHRI M. MURUGABOOPATHY, ADDL. CIT )*'( + , / RESPONDENT BY : SHRI R.K.V. SUNDAR, ADVOCATE - $ + ./ / DATE OF HEARING : 15.06.2016 01% + ./ / DATE OF PRONOUNCEMENT : 01.07.2016 / O R D E R THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 6, CHENN AI, DATED 19.02.2016 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2 I.T.A. NO.1196/MDS/16 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS WITH REGARD TO DISALLOWANCE OF EMPLOYEES CONTRIBUTION TO THE ESI AND PROVIDENT FUND. 3. SHRI M. MURUGABOOPATHY, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE HAS TO DEPOSIT THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AND ESI W ITHIN THE TIME LIMIT PRESCRIBED UNDER THE PROVIDENT FUND AND ESI A CT. REFERRING TO SECTION 36(1)(VA) OF THE INCOME-TAX ACT, 1961 (IN S HORT 'THE ACT'), MORE PARTICULARLY TO EXPLANATION, THE LD. D.R. SUBM ITTED THAT DUE DATE MEANS THE DATE BY WHICH THE ASSESSEE WAS REQUI RED TO CREDIT THE EMPLOYEES CONTRIBUTION TO THE EMPLOYEES ACCOU NT IN THE RELEVANT FUND UNDER THE RELEVANT RULES, ACT AND NOT IFICATION ISSUED THEREUNDER. IN THE CASE BEFORE US, ACCORDING TO TH E LD. D.R., ADMITTEDLY THE EMPLOYEES CONTRIBUTION WAS NOT CRED ITED WITHIN THE DUE DATE PRESCRIBED UNDER THE PROVISIONS OF PROVIDE NT FUND ACT AND ESI ACT, THEREFORE, THE CIT(APPEALS) IS NOT JUSTIFI ED IN ALLOWING THE CLAIM OF THE ASSESSEE. 4. ON THE CONTRARY, SHRI R.K.V. SUNDAR, THE LD.COUN SEL FOR THE ASSESSEE, SUBMITTED THAT EVEN THOUGH SECTION 36(1)( VA) OF THE ACT PROVIDES FOR PAYMENT OF EMPLOYEES CONTRIBUTION WIT HIN THE DUE DATE 3 I.T.A. NO.1196/MDS/16 PRESCRIBED UNDER RELEVANT ACT, SECTION 43B CLEARLY SAYS THAT THE EMPLOYEES CONTRIBUTION OR EMPLOYERS CONTRIBUTION CANNOT BE ALLOWED UNLESS IT IS ACTUALLY PAID WITHIN THE DUE D ATE FOR FILING OF RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. IN THIS CASE, ADMITTEDLY, THE ASSESSEE HAS PAID THE EMPLOYEES CO NTRIBUTION WITHIN THE DUE DATE PRESCRIBED FOR FILING OF RETURN UNDER SECTION 139(1) OF THE ACT, THEREFORE, THE CLAIM OF THE ASSE SSEE HAS TO BE ALLOWED UNDER SECTION 43B OF THE ACT. ACCORDING TO THE LD. COUNSEL, THE PROVISIONS OF SECTION 43B OF THE ACT WILL OVERR IDE THE OTHER PROVISIONS OF INCOME-TAX ACT. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE CIT(APPEALS) DIRECTED THE ASSESSING OFFICER TO ALLO W THE EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI SUBSEQUENT TO VERIF ICATION BY THE ASSESSING OFFICER THAT THESE AMOUNTS ARE PAID BEFOR E THE DUE DATE FOR FILING OF RETURN OF INCOME FOR THE ASSESSMENT Y EAR UNDER CONSIDERATION. THE CONTENTION OF THE REVENUE BEFOR E THIS TRIBUNAL IS THAT WHEN SECTION 43B WAS AMENDED BY FINANCE ACT , 2003, THERE WAS NO CORRESPONDING AMENDMENT IN SECTION 36(1)(VA) OF THE ACT. THEREFORE, THE ASSESSEE HAS TO NECESSARILY DEPOSIT THE EMPLOYEES CONTRIBUTION WITHIN THE DUE DATE PROVIDED UNDER THE PROVISIONS OF 4 I.T.A. NO.1196/MDS/16 ESI ACT AND PF ACT. THIS TRIBUNAL FINDS THAT THIS ISSUE WAS CONSIDERED BY THE APEX COURT IN CIT V. VINAY CEMENT LTD. (2007) 213 CTR 268. THE APEX COURT FOUND THAT BOTH EMPLOY EES CONTRIBUTION AND EMPLOYERS CONTRIBUTION HAVE TO BE DEPOSITED WITHIN THE DUE DATE FOR FILING OF THE RETURN UNDER SECTION 139(1) OF THE ACT, THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SA ME IS CONFIRMED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON 1 ST JULY, 2016 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 3! /DATED, THE 1 ST JULY, 2016. KRI. + ).45 65%. /COPY TO: 1. '( /APPELLANT 2. )*'( /RESPONDENT 3. - 7. () /CIT(A)-6, CHENNAI 4. PRINCIPAL CIT-2, CHENNAI 5. 5$8 ). /DR 6. 9# : /GF.