SHAMIM AKHTAR ABDUL KHALIQ SHAIKH, MUMBAI V. ITO WD 25(1) (2) CPC, MUMBAI

ITA 152/MUM/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0875 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC-1
• Assessment Year: 2018-2019
• Appeal Filed On: 27-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER ITA No.152/M/2022 Assessment Year: 2018-19 Shri Shamim Akhtar Abdul Khaliq Shaikh, 1 S Nisha Chawl, Behind Mahakali Masjid, Mahakali Caves Road, Andheri East, Mumbai PAN: AULPS1757M Vs. Income Tax Officer, Ward 25(1)(2), KB-203, Kautilya Bhavan, BKC, Mumbai – 400 051 (Appellant) (Respondent) Present for: Assessee by : None Revenue by : Shri Kiran P. Unavekar, D.R. Date of Hearing : 30.05.2022 Date of Pronouncement : 30.05.2022 O R D E R Per Kuldip Singh, Judicial Member: Appellant Shri Shamim Akhtar Abdul Khaliq Shaikh (hereinafter referred to as ‘assessee’) by filing present appeal sought to set aside the impugned order passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] on the grounds inter alia that: “1. The Ld. CIT (A) has erred in upholding the order of CPC/AO passed u/s 154 of the IT Act, without appreciating the facts of the case and law. 2. The Ld. CIT(A) has erred in confirming the order of the AO/CPC, passed u/s 154 rejecting appellants request for rectification, ITA No.152/M/2022 Shri Shamim Akhtar Abdul Khaliq Shaikh 2 disregarding the fact that the issue under consideration was covered in favor of the appellant by the decision of the Hon. Jurisdictional High Court. 3. The Ld. CIT (A) has erred in rejecting the appeal filed by the appellant in a mechanical manner, without appreciating the fact that, being CIT (A), he/she was very much empowered to consider the facts and decide the issue judiciously/adjudicating upon. 4. The appellant craves leave to add, amend, alter and /or vary any of the grounds at the time or before the hearing of this appeal. 5. The Appellant therefore prays that the order passed by the Ld. CIT(A) may please be set aside and the Ld. Assessing officer may please directed to carry out the rectification u/s. 154 of the I.T. Act, as requested and oblige.” 2. Briefly stated facts necessary for adjudication of the controversy at hand are : during the assessment proceedings the Assessing Officer (AO)-CPC, Bangalore has disallowed employees’ contribution to Provident Fund (PF) and Employee State Insurance Corporation (ESIC) paid by the assessee for the year under consideration, deposited after due date prescribed under the PF/ESIC Act and thereby made the addition of Rs.24,12,228/- under section 36(1)(va) of the Income Tax Act, 1961 (for short ‘the Act’). 3. Thereafter the assessee filed rectification application under section 154 of the Act before AO against rejection of assessee’s claim of allowing PF & ESI contribution deposited before filing return of income which has been rejected by the AO. 4. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has upheld the disallowance/addition by dismissing the appeal. Feeling aggrieved the assessee has come up before the Tribunal by way of filing present appeal. ITA No.152/M/2022 Shri Shamim Akhtar Abdul Khaliq Shaikh 3 5. Despite issuance of the notice to the assessee none appeared on behalf of him, so the Bench decided to decide this appeal on the basis of material available on record with the assistance of the Ld. D.R. for the Revenue. 6. We have heard the Ld. Departmental Representative for the Revenue, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon. 7. Undisputedly, the assessee has made payment towards the employees contribution of PF and ESIC after due date prescribed in the relevant Act which is tabulated for ready perusal as under: Employee Provident Fund Month Sum Reed from employee s Actual Amount Paid Due date for payment Date of payment Delay Comments Apr- 17 97072 203425 15-05-2017 15-05-2017 NA All EPF challans were paid before the Due Date of Filing the Income Tax Return for the AY2018-19 May-17 96099 201385 15-06-2017 29-06-2017 14 Days June-17 96640 202522 15-07-2017 15-07-2017 NA July-17 99298 208088 15-08-2017 19-08-2017 4 Days ITA No.152/M/2022 Shri Shamim Akhtar Abdul Khaliq Shaikh 4 Aug-17 100103 209772 15-09-2017 22-09-2017 7 Days Sep-17 96687 202616 15-10-2017 24-10-2017 9 Days Oct-17 98927 207313 15-11-2017 18-11-2017 3 Days Nov-17 100047 209661 15-12-2017 18-12-2017 3 Days Dec-17 97965 205295 15-01-2018 16-01-2018 1 Days Jan-17 98974 207410 15-02-2018 13-03-2018 26 Days Feb-17 94731 198515 15-03-2018 21-03-2018 6 Days Mar-17 64069 134267 15-04-2018 29-06-2018 75 Days Total 1140612 2390269 Month Sum Recd from employees Actual Amount Paid Due date for payment Date of payment Delay Comments Apr-17 16253 60179 21-05- 2017 15-05- 2017 NA All ESIC challans were paid before the Due Date of Filing the Income Tax Return May-17 16256 60188 21-06- 2017 24-06- 2017 3 Days June-17 16288 60305 15-07-16-07-1 Day ITA No.152/M/2022 Shri Shamim Akhtar Abdul Khaliq Shaikh 5 8. It is brought to the notice of the Bench that the identical issue has already been decided by the Hon’ble Bombay High Court in case of CIT V. Ghatge Patil Transporters Ltd. 368 ITR 749 by confirming the order passed by the Tribunal that deduction claimed by the assessee on account of employees contribution to PF & ESIC well before the due date of filing return of income is allowable deduction. 9. Hon’ble High Court of Bombay in case of Ghatge Patil Transporters Ltd. (supra) held that both employees’ and employer’s 2017 2017 for the AY 2018-19 July-17 16770 62093 15-08- 2017 21-08- 2017 6 Days Aug-17 17371 64327 15-09- 2017 21-09- 2017 6 Days Sep-17 16661 61695 15-10- 2017 22-10- 2017 7 Days Oct-17 17308 64103 15-11- 2017 19-11- 2017 4 Days Nov-17 17545 64981 15-12- 2017 16-12- 2017 1 Days Dec-17 17245 63868 15-01- 2018 18-01- 2018 3 Days Jan- 17 17613 65227 15-02- 2018 14-03- 2018 27 Days Feb-17 16879 62506 15-03- 2018 19-03- 2018 4 Days Mar-17 11906 44131 15-04- 2018 30-06- 2018 76 Days Total 198095 733603 ITA No.152/M/2022 Shri Shamim Akhtar Abdul Khaliq Shaikh 6 contribution are covered under amendment to section 43B and covered under judgment of Hon’ble Supreme Court in case of CIT vs. Alom Extrusions Ltd. (2009) 319 ITR 306 and such deduction claimed by the assessee is allowable. 10. Co-ordinate Bench of the Tribunal in case of M/s. Adyar Ananda Bhavan Sweets India P. Ltd. vs. ACIT (supra) also decided the identical issue in favour of the assessee by holding that the payment of employees contribution qua PF & ESIC if made before the due date of filing of return of income, the same is allowable deduction as per provisions of Section 2(24)(x) r.w.s. 36(1)(va) r.w.s. 43B of the Act. 11. In view of what has been discussed above, we are of the considered view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable for the year under consideration i.e. A.Y. 2018-19 as the amendment will be effective from A.Y. 2021-22 and the AO/ Ld. CIT(A) have erred in disallowing the same. Resultantly, impugned order passed by Ld. CIT(A) is not sustainable in the eyes of law hence set aside and AO is directed to allow the employees’ contribution deposited by the assessee well before filing the return of income. Hence, appeal filed by the assessee is allowed. Order pronounced in the open court on 30.05.2022. Sd/- Sd/- ( OM PRAKASH KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 30.05.2022. * Kishore, Sr. P.S. ITA No.152/M/2022 Shri Shamim Akhtar Abdul Khaliq Shaikh 7 Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.