The Modasa Nagrik Sahakari Sahakari Bank Ltd., Sabarkantha V. The Asstt. Commissioner of Income Tax, S.K. Circle, Sabarkantha

ITA 1308/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8510 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 17-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH , ACCOUNTANT MEMBER ITA NO. 1308/AHD/2016 (ASSESSMENT YEAR : 2013-14) THE MODASA NAGARIK SAHAKARI BANK LTD., POST: MODASA 383315, DIST: SABARKANTHA A PPELLANT VS. THE ACIT, S. K. CIRCLE, AAYAKAR BHAVAN, NR. GANDHI TOWN HALL, HIMATNAGAR 383001, DIST: SABARKANTHA RESPONDENT PAN: AAAAT0525G / BY ASSESSEE : SHRI BHADRESH GANDHAKWALA, A.R . / BY REVENUE : SHRI MUDIT NAGPAL, SR. D.R. /DATE OF HEARING : 19.04.2018 /DATE OF PRONOUNCEMENT : 19.04.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 ARISES FROM THE CIT(A)- 2, AHMEDABADS ORDER DATED 15.04.2016, IN CASE NO. CIT(A)-2/233/AC, SK CIRCLE, HMT/2015-16, IN PROCEEDINGS U/S.143(3) OF THE INCOM E TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO. 1308/AHD/16 [THE MODASA NAGARIK SAHAKARI BANK LTD. VS. ACIT] A.Y. 2013-14 - 2 - 2. THE ASSESSEES SOLE GRIEVANCE PLEADED IN THE INS TANT APPEAL CHALLENGES CORRECTNESS OF THE CIT(A)S ORDER UPHOLDING ASSESSI NG OFFICERS ACTION DISALLOWING EMPLOYEES CONTRIBUTION TO PROVIDENT FUND/ESIC OF R S.1,04,525/- IN ASSESSMENT ORDER DATED 30.10.2015. LOWER APPELLATE FINDINGS U NDER CHALLENGE READ AS UNDER: 2.3 DECISION: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, THE ASSESSMENT ORDER AND THE WRITTEN SUBMISSION OF THE APPELLANT. THE AO HAS MADE THE DISALLOWANCE ON ACCOUNT OF LATE PAYMENT TOWARDS PF OF RS. 1,04,525/ - FOR THE MONTH OF JULY-2012.. THE ASSESSING OFFICER IN THE ORDER HAS MENTIONED TH AT AS PER THE PROVISIONS OF CLAUSE (VA) OF SUB SECTION (1) OF 36 OF THE ACT, TH E ASSESSEE IS ENTITLED TO DEDUCTION IN RESPECT OF THE SUM REFERRED TO IN SUB CLAUSE (X) OF CLAUSE (24) OF SECTION 2 OF THE ACT IF SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND ON OR BEFORE THE DUE DATE OF RESPECTIVE ACTS. THE AO HAS FURTHER RELIED ON THE RECENT JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION [2014] 41 TAXMANN.COM 10 0 (GUJARAT). 2.4. THE APPELLANT ON THE OTHER HAND HAS STATED DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS AT THE APPELLATE STAGE THAT THE CONTRIBUTION COLLECTED FROM EMPLOYEES TOWARDS PROVIDENT FUND WAS DEPOSITED IN T HE FUND AFTER THE DUE DATE MENTIONED IN THE RESPECTIVE ACT BUT BEFORE END OF T HE FINANCIAL YEAR. IN OTHER WORDS, THE APPELLANT HAS STATED THAT THE SAID AMOUN TS OF THE EMPLOYEES CONTRIBUTION HAS BEEN DULY DEPOSITED BEFORE DUE DATE OF FILING O F FILING OF RETURN OF INCOME MENTIONED IN SECTION 139(1) OF THE I. T. ACT, 1961. THE APPELLANT HAS ALSO RELIED ON SEVERAL JUDICIAL PRONOUNCEMENTS WHICH HAS BEEN MENT IONED IN THE WRITTEN SUBMISSION OF THE APPELLANT. THE APPELLANT HAS ALSO CONTENDED THAT THE MAIN PROVISIONS OF SECTION 43B WOULD BE APPLYING ON THE FACT AS THE EMPLOYER HAS DEPOSITED THE CONTRIBUTION FOR THE EMPLOYEE AND EMP LOYER THUS THE SAME IS TO BE COVERED BY THE PROVISIONS OF SECTION 43B OF THE ACT AND HENCE THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF GSRTC IS NOT APPLICABLE. 3.5. IT IS WORTH HERE TO MENTION THAT THE DISALLOWA NCE WAS MADE FOR THE REASON THAT EMPLOYEES' CONTRIBUTION TO PF WAS NOT MADE WITHIN T HE DUE DATES SPECIFIED UNDER THE P.P. ACT. THE ADDITION WAS ALSO SUPPORTED BY TH E JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GSRTC IN TAX APPE AL NO. 637 OF 2013. IT HAS BEEN FOUND THAT THE JUDGEMENT OF THE JURISDICTIONAL GUJARAT HIGH COURT IS A BINDING FORCE OVER THE OTHER DECISIONS / JUDGEMENTS CITED B Y THE APPELLANT AND THE SAME IS TO BE FOLLOWED BY THIS OFFICE. 3.6. IN VIEW OF THE ABOVE FACTS OF THE CASE, IT IS UNDISPUTED FACT THAT THERE WAS DELAY IN MAKING THE PAYMENT OF THE PF IN RESPECT OF EMPLOYEES CONTRIBUTION. AS PER APPELLANT THE SAME IS COVERED AS PER THE MAIN PROVI SIONS OF SECTION 43B OF THE ACT WHICH IS LEGALLY INCORRECT FOR THE REASON THAT TO D EAL WITH THE EMPLOYEES CONTRIBUTION THE SEPARATE PROVISIONS ARE PROVIDED I N THE I.T ACT U/S.36(L)(VA) R.W.S. 2(24)(X). THUS THE CLAIM OF THE APPELLANT THAT THE EMPLOYER HAS MADE THE CONTRIBUTION FOR THE EMPLOYEE WOULD BE DEALT BY PRO VISIONS OF SECTION 43B IS NOT CORRECT. THE IDENTICAL ISSUE WITH REGARD TO LATE P AYMENT OF EMPLOYEES CONTRIBUTION ITA NO. 1308/AHD/16 [THE MODASA NAGARIK SAHAKARI BANK LTD. VS. ACIT] A.Y. 2013-14 - 3 - TO PF HAS BEEN DECIDED IN THE -RECENT JUDGMENT O F HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION [2014] 41 TAXMANN.COM 100 (GUJARAT) WHICH IS SQUARELY APPLICABLE OVER THE FACTS. SIMPLY THE EMPLOYER HAS DEPOSITED THE P.F. CONTRIBU TION ON BEHALF OF THE EMPLOYEE WOULD NOT ALTER THE CHANGE IN APPLICATION OF SECTI ONS. THE EMPLOYER HAS DEPOSITED THE CONTRIBUTION AS AN AGENT ON BEHALF OF THE EMPLO YEES BUT THE BASIC NATURE OF THE CONTRIBUTION WOULD REMAIN TO BE THE CONTRIBUTION OF THE EMPLOYEES ONLY AND NOT OF THE EMPLOYER. SINCE THE EMPLOYEES CONTRIBUTION TO P F HAS NOT BEEN DEPOSITED AS PER THE RESPECTIVE DUE DATES AS PER THE PF ACT, DISALLO WANCE MADE BY THE AO IS FOUND CORRECT AND JUSTIFIED AND HENCE THE SAME IS CONFIRM ED. THUS THE GROUND OF APPEAL IS DISMISSED. IT HAS THEREFORE COME ON RECORD THAT THE CIT(A) HA S FOLLOWED HONBLE JURISDICTIONAL HIGH COURTS ORDER IN GUJARAT STATE ROAD TRANSPORT CORPORATION CASE (SUPRA) DECIDING THE VERY QUESTION OF LAW IN REVENU ES FAVOUR. WE FIND NO REASON TO INTERFERE WITH THE IMPUGNED DISALLOWANCE IN THIS LEGAL AND FACTUAL BACKDROP. THE ASSESSEES SOLE SUBSTANTIVE GROUND IS ACCORDINGLY R EJECTED. 3. THIS ASSESSEES APPEAL IS DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 19 TH DAY OF APRIL, 2018.] SD/- SD/- ( AMARJIT SINGH ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD: DATED 19/04/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0