V Green Furnitures and Fixtures, Hyderabad V. ITO- Ward7(2), Hyderabad

ITA 138/Hyd/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4382 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-04-2021
• Assessment Year: 2018-2019
• Appeal Filed On: 01-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E SRIDHAR
• Assessee Lawyers: RAVINDRA CHENGI
• Keywords: Period of limitation; Condonation of delay
• Section: 201; 192; 139(1); 113; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD SMC BENCH : HYDERABAD (THROUGH VIDEO CONFERENC E ) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NO. 138 /HYD./20 2 1 ASSESSMENT YEAR: 2018 - 19 M/S V. GREEN FURNITURES & FIXTURES VS. ITO, WARD 7 ( 2 ) 112, BIODIVERSITY PARK ROAD HYDERABAD GACHIBOWLI HYDERABAD 500 032 [ PAN: AAJFV1140M ] (APPELLANT) (RESPONDENT) FOR ASSESSEE : SRI RAVINDRA CHENGI, A.R. FOR REVENUE : SRI E. SRIDHAR, D.R. DATE OF HEARING : 1 9 / 04 /202 1 DATE OF PRONO UNCEMENT : 19 / 0 5 /202 1 O R D E R THIS IS ASSESSEES APPEAL FOR AY 201 8 - 19 AGAINST THE ORDER OF THE CIT(A) - 3 , HYDERABAD DATED 31.07..2020 . AT THE OUTSET, IT IS NOTICED THAT THERE IS A DELAY OF 153 DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL. ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY STATING THAT THE DELAY IN FILING OF THE APPEAL WAS DUE TO INADVERTENT MISTAKE AND ON ACCOUNT OF NEW SYSTEM OF E - ASS ESSMENT PROCEEDINGS AND CORONA PANDEMIC PERIOD . IT WAS THUS PRAYED FOR CONDONATION OF DELAY. T HE LEARNED COUNSEL FOR ASSESSEE REITERATED SUBMISSIONS MADE IN THE APPLICATION . HAVING GONE THROUGH THE RIVAL CONTENTIONS, I AM CONVINCED THAT THERE IS N O DELAY IN FILING OF THE APPEAL BEFORE THE TRIBUNAL IN VIEW OF THE DIRECTIONS OF THE ITA 138/HYD/2021 M/S V GREEN FURNITURE & FIXTURES,HYD. AY 2018 - 19 2 HONBLE SUPREME COURT OF INDIA IN THE CASE OF SUO MOTU WRIT PETITION (CIVIL) NO.3 OF 2020, DATED 8.3.2021, WHEREIN THE HONBLE APEX COURT DIRECTED THAT IN COMPUTING THE P ERIOD OF LIMITATION FOR ANY SUIT, APPEAL, APPLICATION OR PROCEEDINGS, THE PERIOD FROM 15.3.2020 TO 14.3.2021 SHALL STAND EXCLUDED AND CONSEQUENTLY, THE BALANCE PERIOD OF LIMITATION REMAINING AS ON 15.3.2020, IF ANY, SHALL BECOME AVAILABLE W.E.F. 15.3.2021 . IN THIS CASE, THE ASSESSEE HAD RECEIVED THE ORDER OF THE CIT(A) ON 01.08.2020 AND THE LAST DATE FOR FILING OF THE APPEAL WAS 01.10.2020, WHILE THE ASSESSEE FILED THE APPEAL ON 01.03 . 2021 ALL OF WHICH DATES FALL WITHIN THE PERIOD MENTIONED IN THE ORDER OF THE HONBLE SUPREME COURT. 2. AS REGARDS MERITS OF THE CASE IS CONCERNED, ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE ORDER OF CIT(A) - 3 DATED 31.7.2020 IS CONTRAR Y TO LAW AND FACTS. 2 THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS5,63,420/ - MADE U/S 36(1)(VA) R.WS. 2(24)(X) OF THE ACT. 3. THE CIT(A) OUGHT NOT TO HAVE CONFIRMED THE SAME CONSIDERING THE FACT THAT THE CONTRIBUTIONS FOR THE MONTHS APRIL TO MAY, 2017 WERE PAID WITH MARGINAL DELAY AND CONTRIBUTIONS FOR DEC. 2017 TO FEB.2018 WERE PAID BEFORE THE FINANCIAL YEAR ENDED ON 31.3.2018 AND CONTRIBUTION FOR MARCH, 2018 WAS PAID BEFORE THE DUE DATE OF FILING OF IT RETURN U/S 139(1) OF THE ACT. 4. THE APPELL ANT SUBMITS THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DISALLOWANCE IS UNJUST. 2.1. I FIND THAT THIS ISSUE IS SIMILAR TO THE ISSUE DECIDED BY ME IN THE CASE OF SHISHIR KUMAR DAS IN ITA NO. 38/HYD/2020 DATED 02.02.2021. F OR THE SAKE OF READY REFERENCE RELEVANT PORTION OF THE ORDER IS REPRODUCED HERE UNDER. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL AVAILABLE ON RECORD, I FIND THAT THERE IS NO DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT ON THIS ISSUE AND OUT OF DECISIONS OF THIRTEEN HIGH COURTS, THE DECISIONS OF TEN HIGH COURTS ARE IN FAVOUR OF THE ASSESSEE WHILE THE DECISIONS OF THREE HIGH COURTS ARE AGAINST THE ASSESSEE IN SOME OF THE OTHER HIGH COURTS, THE ISSUE HAS BEEN DECIDED BOTH AGAINST THE ASSESSEE AS WELL AS IN FAVOUR OF THE ITA 138/HYD/2021 M/S V GREEN FURNITURE & FIXTURES,HYD. AY 2018 - 19 3 ASSESSEE AND THEREFORE, THIS IS A DEBATABLE ISSUE AT PRESENT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S VEGETABLE PRODUCTS LTD REPORTED IN 88 ITR 192 (SC) HAS HELD THAT IF THERE ARE TWO VIEWS POSSIBLE ON THE SAME ISSUE, THE ONE WHICH IS IN FAVOUR OF THE ASSESSEE SHOULD BE ADOPTED FURTHER, THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS GODAVARI SARAF REPORTED IN (1978) 113 ITR 589 (BOM.) HAS HELD THAT IF THERE IS NO DECISION OF THE JURISDICTIONAL HIGH COURT THEN, THE DECISION OF THE NON - JURISDICTIONAL HIGH COURT IS ALSO BINDING. THEREFORE, CONSIDERING THE ABOVE, I HOLD THAT THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD (SUPRA) IS APPLICABLE TO BOTH THE EMPLOYER AS WELL AS EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AND ESI AND IF THE ASSESSEE HAS NOT REMITTED THE AMOUNT COLLECTE D FROM THE EMPLOYEES BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT, THEN THE SAME HAS TO BE DISALLOWED AND BROUGHT TO TAX. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED AND THE AO IS FURTHER DIRECTED TO RECONSIDER THE ISSUE, IF THE CONTRARY VIEW IS UPHELD BY THE APEX COURT IN THE APPEALS BEFORE THE HONBLE SUPREME COURT ON THIS ISSUE. 3. RESPECTFULLY FOLLOWING THE SAME, ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 19/ 0 5 / 202 1 . SD/ - (P. MADHAVI DEVI) JUDICIAL MEMBER DATED: 19 TH MAY, 2021 GMV ITA 138/HYD/2021 M/S V GREEN FURNITURE & FIXTURES,HYD. AY 2018 - 19 4 COPY OF ORDER FORWARDED TO: 1. M/S V GREEN FURNITURE & FIXTURES, 112, BIODIVERSITY PARK ROAD, GACHIBOWLI, SAI KRUPA AVANTHI, STREET 4, HYDERABAD 500 032 TELANGANA. 2. ITO, WARD 7 ( 2 ), HYDERABAD . 3. ACIT, RANGE 7 , HYDERABAD. 5 . CIT(A) - 3, HYDERABAD 6 PR.CIT - 3, HYDE RABAD 7. D.R. ITAT HYDERABAD 8 . GUARD FILE