ACIT, Pune V. Pradeep Bakru Patil, Pune

ITA 1272/PUN/2012

• Counselvise Citation: 127224514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SHAILJA RAI
• Section: 43B; 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.1272/PN/2012 (ASSESSMENT YEAR : 2006-07) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE . APPELLANT VS. PRADEEP BAKRU PATIL S.NO. 737/2, SWARAJ COLONY, NANDHE NAGAR, KALEWADI, PUNE. PAN : AJCPP3742K . RESPONDENT DEPARTMENT BY : MRS. SHAILJA RAI ASSESSEE BY : MR. M. K. KULKARNI DATE OF HEARING : 16-09-2013 DATE OF PRONOUNCEMENT : 27-09-2013 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL HAS BEEN PREFERRED BY THE REV ENUE WHICH IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-V, PUNE DATED 09.03.2012 WHICH, IN TURN, HAS ARISEN FR OM AN ORDER DATED 16.04.2010 PASSED BY THE ASSESSING OFFICER, UNDER S ECTION 154 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINI NG TO THE ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL, THE SOLITARY GRIEVANCE OF THE RE VENUE IS AGAINST THE ACTION OF THE CIT(A) IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OUT OF EMPLOYEES CONTRIBUTIONS TO THE PROVIDENT FUND ( PF) AND EMPLOYEES STATE INSURANCE (ESI) AMOUNTING TO RS.15,69,032 AND RS.6, 05,873/- RESPECTIVELY. 3. IN BRIEF, THE FACTS ARE THAT IN AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE ACT THE AMOUNTS REPRESENTI NG EMPLOYEES CONTRIBUTIONS TO PF AND ESI WERE DISALLOWED ON THE GROUND THAT SUCH ITA NO.1272/PN/2012 A.Y. 2006-07 CONTRIBUTIONS WERE ACTUALLY PAID BY THE ASSESSEE AF TER THE DUE DATE PRESCRIBED IN THE RESPECTIVE ACTS. ACCORDINGLY, DELAYED PAYMEN T OF EMPLOYEES CONTRIBUTIONS ON ACCOUNT OF PF AND ESI AMOUNTING TO RS.15,69,032/- AND RS.6,05,873/- RESPECTIVELY WERE DISALLOWED. THE CIT (A), FOLLOWING THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF GH ATGE PATIL TRANSPORTERS LTD. VS. ACIT IN ITA NO.340/PN/2010 DATED 29.07.2011, DE LETED THE ADDITION ON THE GROUND THAT IMPUGNED CONTRIBUTIONS WERE PAID BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. AGAINST THE AFORESAID DECISION, REVENUE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING, THE LEARNED DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE CIT(A) ERRED IN DELETING THE D ISALLOWANCE BY NOT APPRECIATING THE DISTINCTION BETWEEN THE EMPLOYEES CONTRIBUTIONS TOWARDS PF/ESI AND THAT OF EMPLOYORS CONTRIBUTIONS SO FAR AS ITS ALLOWABILITY IS CONCERNED. IT IS POINTED OUT THAT DEPOSIT OF EMPLOY ORS CONTRIBUTIONS IS GOVERNED BY THE PROVISIONS OF SECTION 43B OF THE AC T WHICH PERMIT ALLOWABILITY OF SUCH CONTRIBUTIONS EVEN IF THEY HAVE BEEN PAID B EYOND DUE DATE UNDER THE RESPECTIVE ACTS BUT BEFORE THE DUE DATE OF FILING O F RETURN OF INCOME. WHEREAS IN SO FAR AS THE EMPLOYEES CONTRIBUTION IS CONCERN ED THE SAME IS NOT GOVERNED BY SECTION 43B OF THE ACT BUT INSTEAD GOVERNED BY S ECTION 36(1)(VA) OF THE ACT WHEREIN THE DUE DATE SPECIFIED FOR THE DEPOSIT DOES NOT REFER TO THE DUE DATE FIXED FOR FILING OF RETURN OF INCOME OF SECTION 139 (1) OF THE ACT BUT IT REFERS TO DUE DATE AS SPECIFIED IN THE RESPECTIVE ACTS. IT W AS, THEREFORE, CONTENDED THAT THE CIT(A) ERRED IN DELETING THE ADDITION IN QUESTI ON WHICH RELATED TO DELAYED DEPOSIT OF EMPLOYEES CONTRIBUTIONS TO PF/ESI, BEYO ND THE DUE DATE PRESCRIBED IN THE RESPECTIVE ACTS. 5. ON THE OTHER HAND, THE LEARNED COUNSEL APPEARING FOR THE RESPONDENT- ASSESSEE RELIED UPON THE ORDER OF THE CIT(A) IN SUP PORT OF THE CASE OF THE ASSESSEE AND IT WAS POINTED OUT THAT THE SAID ARGUM ENT OF THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS BEEN DEALT WITH BY THE TRIBUNAL IN THE CASE ITA NO.1272/PN/2012 A.Y. 2006-07 OF GHATGE PATIL TRANSPORTERS LTD. (SUPRA) WHEREIN T HE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AIMIL LTD. 321 ITR 508 (DEL.) AND ALSO THE JUDGEMENT OF THE HONBLE PUNJAB AND HARYANA HIG H COURT IN THE CASE OF CIT VS. LAKHANI RUBBERS WORKS 326 ITR 415 (P&H) HAV E BEEN FOLLOWED TO ALLOW THE CLAIM OF THE ASSESSEE. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THERE IS NO DISPUTE TO THE FACTUAL MATRIX THAT THE CONTROVERSY IN THE P RESENT APPEAL IS COVERED BY THE EARLIER DECISION OF THE PUNE BENCH OF THE TRIBU NAL IN THE CASE OF GHATGE PATIL TRANSPORTERS LTD. (SUPRA), WHICH HAS BEEN FOL LOWED BY THE CIT(A). IN THE SAID PRECEDENT, THE TRIBUNAL HELD THAT EVEN EMPLOYE ES CONTRIBUTIONS TOWARDS PF AND ESI WHICH ARE PAID WITHIN DUE DATE OF FILING OF RETURN OF INCOME IS ALLOWABLE EXPENDITURE THOUGH THEY MAY HAVE BEEN PAI D BEYOND THE DUE DATE SPECIFIED IN THE RESPECTIVE ACT. THE TRIBUNAL NOTIC ED A SIMILAR ARGUMENT THAT HAS BEEN RAISED BY THE LEARNED DEPARTMENTAL REPRESE NTATIVE BEFORE US, AND AFTER FOLLOWING THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE AIMIL LTD. (SUPRA) AND ALSO THAT OF THE HONBLE PUNJAB AN D HARYANA HIGH COURT IN THE CASE OF LAKHANI RUBBERS WORKS (SUPRA) CONCLUDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE AFORESAID TWO JUDGEMENTS ARE DIRECTLY ON THE POINT OF DEDUCTIBILITY OF EMPLOYEES CONTRIBUTIONS TOWARDS P F AND ESI AND ARE BASED ON THE RATIO OF THE JUDGEMENT OF THE HONBLE SUPREM E COURT IN THE CASE OF CIT VS. ALAM EXTRUSIONS LTD. 319 ITR 306 (SC). UNDER TH ESE CIRCUMSTANCES, IN VIEW OF THE PRECEDENTS OF THE PUNE BENCH OF THE TRI BUNAL AND ALSO THE PRECEDENTS BY WAY OF THE JUDGEMENTS OF THE HONBLE DELHI HIGH COURT AND THE HONBLE PUNJAB AND HARYANA HIGH COURT, WE FIND NO R EASON TO DEPART FROM THE VIEW TAKEN BY THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF GHATGE PATIL TRANSPORTERS LTD. (SUPRA) TO THE EFFECT THAT EVEN I N CASE OF EMPLOYEES CONTRIBUTIONS TOWARDS PF AND ESI WHICH ARE PAID BEF ORE THE DUE DATE OF FILING OF RETURN OF INCOME IS AN ALLOWABLE EXPENDITURE. TH US, WE HEREBY AFFIRM THE ORDER OF THE CIT(A) AND REVENUE HAS TO FAIL IN THE PRESENT APPEAL. ITA NO.1272/PN/2012 A.Y. 2006-07 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 27 TH SEPTEMBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE