Dy CIT, Pune V. Saisidha Enterprises, Pune

ITA 1275/PUN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79868 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 127 5 / P N/ 20 1 3 ASSESSMENT YEAR : 200 9 - 10 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 9, PUNE VS. SAISIDHA ENTERPRISES, 24 - 2 ND FLOOR, HIGHWAY TOWER, CHINCHWAD, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAFFS8042P APPELLANT BY: SHRI S.P. WALIMBE RESPONDENT BY: SHRI C.H. NANIWADEKAR DATE OF HEARING : 22 - 05 - 2014 DATE OF PRO NOUNCEMENT : 29 - 05 - 2014 ORDER PER R.S . PADVEKAR , JM : - IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE IMPUGNED ORDERS OF THE LD. CIT(A) - V, PUNE DATED 2 6 - 03 - 2013 FOR THE A.Y. 200 9 - 10. THE REVENUE HAS TAKEN THE MULTIPLE GROUNDS BUT THE FOLLOWING ARE THE EFFECTIVE GROUND S : 1. (1). WHETHER THE DECISION OF CIT(A) IGNORING THE PROVISIONS OF SECTION 2(24)(X) R.W.S. 36(1)(VA) AS PER WHICH EMPLOYEE'S CONTRIBUTION TO ESI, PF AND PENSION FUND IS DEDUCTIBLE ONLY IF PAYMENT IS MADE BEFORE THE DUE DATE AS PRESCRIBED IN THE RESPECTIVE ACT, RULE, ORDER OR NOTIFICATION GOVERNING SUCH FUNDS IS ERRONEOUS AND CONTRARY TO PROVISIONS OF INCOME TAX ACT, 1961? 2. (5). WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND WITHOUT PREJUDICE TO THE STAND TAKEN IN EARLIER GROUNDS, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION IN RESPECT OF DELAYED PF PAYMENT OF RS.1,22,839/ - MADE ON 30.4.2009 PERTAINING TO ARREARS FOR THE YEAR 2008 - 09? 2 ITA NO. 127 5 /PN/2013, SAISIDHA ENTERPRISES, PUNE 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS ACTIVITY SUCH AS HOUSE KEEPING, GARDEN MAINTENANCE, TOILET CLEANING AND SHOP FLOOR CLEANING ETC. ON CONTRACT BASIS. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2009 - 10 WHICH WAS SELECTED FOR SCRUTINY AND ASSESSMENT HAS BEE N COMPLETED U/S. 143(3) OF THE INCOME - TAX ACT. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THERE WAS DELAY ON VARIOUS DATES IN DEPOSITING PAYMENT OF EMPLOYEES SHARE OF PROVIDENT FUND (EPF) AND EMPLOYEES STATE INSURANCE FUND (ESI) O N THE PART OF THE ASSES SEE . T HE ASSESSING OFFICER, THEREFORE, ISSUED THE NOTICE ASKING WHY THE DISALLOWANCE SHOULD NOT BE MADE U/S. 36(1)(VA) OF THE INCOME - TAX ACT. THE DETAILS OF THE PAYMENT GIVEN BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ARE AS UNDER: PROVIDENT FUND DUES FOR THE MONTH OF AMOUNT DUE DATE OF PAYMENT DATE OF PAYMENT APRIL, 2008 487957 15/05/2008 27/05/2008 MAY 161139 15/06/2008 24/06/2008 JUNE 5061 73 15/07/2008 19/07/2008 JULY 497986 15/08/2008 26/08/2008 AUGUST 5 21394 15/09/2008 19/09/2008 SEPTEMBER 505844 15/10/2008 24/10/2008 OCTOBER NOVEMBER 200482 15/12/2008 18/12/2008 21 7434 (PENAL DAMAGES) 28/01/2009 JANUARY, 2009 FEBRUARY 141875 15/01/2009 26/03/2009 MARCH 161468 15/02/'2009 22/04/2009 ARREAR FOR 08 - 09 122839 15/03/2009 30/04/2009 TOTAL 3524591 ESI FUND DUES FOR THE MONTH OF AMOUNT DUE DATE OF PAYMENT DATE OF PAYMENT APRIL, 2008 73262 21/05/2008 29/05/2008 MAY 77442 21/06/20 08 26/06/2008 JUNE 80414 21/07/2008 25/07/2008 JULY 78730 21/08/2008 29/08/2008 AUGUST 83316 21/09/2008 22/10/2008 SEPTEMBER 84165 21/10/2008 06/11/2008 3 ITA NO. 127 5 /PN/2013, SAISIDHA ENTERPRISES, PUNE OCTOBER 76420 21/11/2008 26/11/2008 NOVEMBER 75580 15/12/2008 24/12/ 2008 DECEMBER 65424 21/01/2009 28/01/2009 JANUARY, 2009 58442 21/02/2009 24/02/2009 FEBRUARY 62539 21/03/2009 26/03/2009 MARCH 131951 21/04/2009 22/04/2009 TOTAL 947685 3. THE ASSESSEE SUBMITTED THAT ALL THE PAYMENTS ARE MADE BEFORE DUE DATE OF THE FILING OF THE RETURN OF INCOME AND HENCE, NO DISALLOWANCE CAN BE MADE MERELY BECAUSE THERE IS A DELAY IN DEPOSITING THE DEDUCTION MADE TOWARDS EMPLOYEES CONTRIBUTION OF PROVIDENT FUND AND ESI. THE ASSESSEE ALSO RELIED ON THE DECISI ON OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ALCOM EXTRUSIONS LTD. 319 ITR 306 (SC) AND ALSO ON THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. AIMIL LTD. AND OTHER 321 ITR 508 (DEL). THE ASSESSING OFFICER DID NOT ACCEPT T HE SUBMISSION OF THE ASSESSEE AND HE MADE THE DISALLOWANCE TO THE EXTENT OF RS. 44,72,276/ - (RS.35,24,591 + RS.9,47,685). 4. THE ASSESSEE CHALLENGED THE DISALLOWANCE BEFORE THE LD. CIT(A) AND LD. CIT(A) FOLLOWING THE DECISION OF THE ITAT, PUNE IN THE CASE OF GHATGE PATIL TRANSPORTERS LTD. ITA NO. 340/PN/2010 ALLOWED THE CLAIM OF THE ASSESSEE. THE LD. CIT(A) HAS REPRODUCED THE OPERATIVE PART OF THE FINDING OF THE TRIBUNAL IN THE CASE OF GHATGE PATIL TRANSPORTERS LTD. (SUPRA) WHILE ALLOWING THE RELIEF TO THE ASSESSEE. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE PARTIES. WE FIND THAT ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ALCOM EXTRUSIONS LTD. (SUPRA) AS WELL AS IN THE CASE OF AIMIL LTD. AND OTHER (SUPRA). MOREOVER, THE LD. CIT(A) HAS FOLLOWED THE DECISION OF THIS TRIBUNAL IN THE CASE OF GHATGE PATIL TRANSPORTERS 4 ITA NO. 127 5 /PN/2013, SAISIDHA ENTERPRISES, PUNE LTD. (SUPRA). WE, THEREFORE, CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISSED THE GROUNDS TAKEN BY T HE REVENUE. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 29 - 05 - 20 1 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DAT ED : 29 TH MAY, 20 1 4 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - V, PUNE 4 THE CIT - V, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE