Toyota Material Handling India Pvt. Ltd., Gurgaon V. ACIT, Circle- 25(2), New Delhi

ITA 1638/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4870 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 08-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 43B; 43

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) (THROUGH VIDEO CONFERENCE ) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.1638/DEL./2018 ASSESSMENT YEAR : 2012-13 TOYOTA MATERIAL HANDLING VS. A.C.I.T (INDIA) PVT. LTD. CIRCLE-25(2), 43 MILE STONE, NH-8, DELHI NEW DELHI JAIPUR HIGHWAY (PAN :AADCT6685Q) (APPELLANT) (RESPONDE NT) ASSESSEE BY : SH. ANUBHAV RASTOGI, AR SH. K.M.GUPTA, ADV. REVENUE BY : SH. MANINDER KAUR, SR. DR DATE OF HEARING : 21.09.2021 DATE OF ORDER : 29.09.2021 O R D E R PER SANJAY GARG, JUDICIAL MEMBER APPELLANT, TOYOTA MATERIAL HANDLING INDIA PVT. LTD., GURGAON (HEREINAFTER REFERRED TO AS THE ASSESSEE) , BY FILING THE PRESENT APPEAL HAS SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED ITA NO.1638 /DEL./2018 2 26.12.2017 PASSED BY THE COMMISSIONER OF INCOME-TA X (APPEALS)- 1, GURGAON, QUA THE ASSESSMENT YEAR 2012-13 ON THE GROUNDS INTER ALIA THAT :- 1.THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL)-1, GURGAON [LD. CIT(A)] UNDER SECTION 250(6) OF THE ACT IS BAD IN L AW, TO THE EXTENT OF DISALLOWANCE SUSTAINED AS PER GROUND NO. 2. THAT LD. CIT(A), ON THE FACTS AND CIRCUMSTANC ES OF THE CASE AND IN LAW, HAS ERRED IN CONFIRMING THE DISALLOWANCE OF PROVISION MADE TOWARDS CONTRIBUTION TO APPROVED GRATUITY FUND, AMOUNTING TO INR 12,34,312. THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER, AME ND OR WITHDRAW ALL OR ANY GROUNDS OF APPEAL HEREIN AND TO SUBMIT SUCH STATEMENTS, DOCUMENTS AND PAPERS AS MAY BE CONSIDERED EITHER BEFORE OR AT THE TIME OF HEARI NTG OF THIS APPEAL. 2. THE SHORT ISSUE INVOLVED IN THIS APPEAL IS RELAT ING TO THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOU NT OF PROVISION MADE TOWARDS CONTRIBUTION TO APPROVED GR ATUITY FUND AMOUNTING TO RS. 12,34,312/-. 3. THE ASSESSEE DURING THE YEAR CLAIMED AN EXPENSE OF RS. 17,37,312/- BEING PROVISION TOWARDS GRATUITY. HOWE VER, THE ASSESSING OFFICER REFERRING TO THE PROVISIONS OF SE CTION 43B OF THE INCOME TAX ACT OBSERVED THAT THE ASSESSEE, DURING T HE FINANCIAL YEAR, HAD PAID TO THE FUND AN AMOUNT OF RS. 5,03,0 00/- ONLY, HE, THEREFORE, DISALLOWED REMAINING AMOUNT OF RS. 12,34 ,312/- AS THE SAME WAS NOT PAID TO THE APPROVED GRATUITY FUND DUR ING THE YEAR, BUT IN THE SUBSEQUENT YEAR. THE ASSESSING OFFICER HELD THAT AS PER ITA NO.1638 /DEL./2018 3 THE PROVISIONS OF SECTION 43B ONLY THE AMOUNT OF AC TUAL PAYMENT WAS TO BE ALLOWED. 4. THE LD. CIT(A) CONFIRMED THE DISALLOWANCES MADE BY THE AO. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 40A(7)(B) OF THE INCOME TAX ACT, THE PROVISION MADE BY THE ASSESSEE FOR THE PUR POSE OF A PAYMENT OF SUM BY WAY OF ANY CONTRIBUTION TO APPROV E GRATUITY FUND IS AN ALLOWABLE DEDUCTION. THE LD. COUNSEL HAS FURTHER REFERRED TO PROVISIONS OF SECTION 43B OF THE ACT TO STATE THAT AS PER THE PROVISO TO SECTION 43B, THE AMOUNT PAID TOWAR DS GRATUITY FUND BEFORE THE DUE DATE OF FILING OF THE RETURN IS TO B E ALLOWED AS DEDUCTION. LD. COUNSEL HAS FURTHER SUBMITTED THAT T HE ASSESSEE HAS DEPOSITED A SUM OF RS.56,14,466/- ON 19 TH APRIL, 2012 IN THE APPROVED GRATUITY FUND I.E. BEFORE THE DUE DATE OF FILING OF THE INCOME TAX RETURN FOR THE FINANCIAL YEAR 2011-12. T HE LD. COUNSEL, IN THIS RESPECT, HAS SUBMITTED THAT THE MA TTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR V ERIFICATION OF THIS FACT. THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT AS DR) ITA NO.1638 /DEL./2018 4 HAS ALSO NOT OBJECTED TO THE SAME. IN VIEW OF THIS THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO VERIFY THE CONTENTION OF THE ASSESSEE THAT THE AMOUNT OF PROVISION CREATED FOR A PPROVED GRATUITY FUND WAS DEPOSITED BEFORE DUE DATE OF FILING OF THE RETURN. IF THE CONTENTION OF THE ASSESSEE IS PROVED TO BE CORRECT THEN NO DISALLOWANCE ON THIS ACCOUNT WOULD BE MADE. 5. IN VIEW OF ABOVE, APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF SEPTEMBER, 2021. SD/- SD/- (ANIL CHATURVEDI) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 DAY OF SEPTEMBER, 2021 BINITA COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.