M/s. Chartered Speed Pvt. Ltd., Ahmedabad V. DCIT, Circle-1(1)(2), Ahmedabad

ITA 1659/AHD/2018

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5708 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 12-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P. JAIN
• Keywords: Set aside
• Section: 43B; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NO: 1659/AHD/2018 (ASSESSMENT YEAR: 2015-16) M/S. CHARTERED SPEED PVT. LTD. S.NO. 474, SARKHEJ BAVLA HIGHWAY, OPP. SANATHAL, SARKHEJ, AHMEDABAD-382210 V/S THE DCIT, CIRCLE-1(1)(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AADCC0802E APPELLANT BY : NONE RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 30 -11-201 8 DATE OF PRONOUNCEMENT : 30-11-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, AHMEDABAD DATED 28.05.2018 PERTAINING TO A.Y. 2015- 16 AND CONFIRMING THE DISALLOWANCE OF EMPLOYEES PROVIDENT FUND OF RS. 6,4 8,704/- U/S. 36(1)(VA). ITA NO . 165 9/AHD/2018 . A.Y. 2015-16 2 2. THIS ISSUE IS ALREADY AGAINST THE APPELLANT FOR LAT E DEPOSIT OF EMPLOYEES PROVIDENT FUND WITH THE AUTHORITY BY THE JUDGMENT O F HONBLE GUJARAT HIGH COURT IN THE MATTER OF GSRTC 366 ITR 170 WHEREIN IT IS HELD: 'SECTION 43B, READ WITH SECTION 36(1)(VA) OF THE INC OME-TAX ACT, 1961 - BUSINESS DISALLOWANCE - CERTAIN DEDUCTIONS TO BE ALLOWED ON ACTUAL PAYMENT (EMPLOYEES CONTRIBUTION) - WHETHER WHERE AN EMPLOYER HAS NOT C REDITED SUM RECEIVED BY IT AS EMPLOYEES' CONTRIBUTION TO EMPLOYEES' ACCOUNT IN RELEVANT FUND ON OR BEFORE DUE DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36 (1)(VA), ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTION OF SUCH AMOUNT THOUGH HE DEPO SITS SAME BEFORE DUE DATE PRESCRIBED UNDER SECTION 43B I. E., PRIOR TO FILING OF RETURN UNDER SECTION 139(1) - HELD, YES - ASSESSEE STATE TRANSPORT CORPORATION CO LLECTED A SUM BEING PROVIDENT FUND CONTRIBUTION FROM ITS EMPLOYEES - HOWEVER, IT HAD DEPOSITED LESSER SUM IN PROVIDENT FUND ACCOUNT -ASSESSING OFFICER DISALLOWE D SAME UNDER SECTION 43B - HOWEVER, COMMISSIONER (APPEALS) DELETED DISALLOWANC E ON GROUND THAT EMPLOYEES CONTRIBUTION WAS DEPOSITED BEFORE FILING RETURN - WHETHER SINCE ASSESSEE HAD NOT DEPOSITED SAID CONTRIBUTION IN RES PECTIVE FUND ACCOUNT ON DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36(1)(VA), DISALLOWANCE MADE BY ASSESSING OFFICER WAS JUST AND PROPER - HELD, YES [PARA 8] [I N FAVOUR OF REVENUE] 3. IN THE MEANWHILE, IT IS NOTICED THAT ON THIS ISSUE APPEAL IS PENDING BEFORE THE HONBLE SUPREME COURT AND RECENTLY HONBLE GUJARAT HIGH COURT IN TAX APPEAL NO. 1186 OF 2018 HAS HELD THAT TWO CLEAR WAY S ARE POSSIBLE TO ENABLE THE APPELLANT-ASSESSEE TO GET BENEFIT OF THE JUDGME NT OF THE SUPREME COURT, IN CASE THE HIGH COURT JUDGMENT IS REVERSED BY THE HON BLE SUPREME COURT AND RELEVANT PART OF THE SAID ORDER OF THE HIGH COURT I S REPRODUCED: THIS APPEAL IS FILED BY THE ASSESSEE TO CHALLENGE THE JUDGMENT OF THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD {'TRIBUNAL' FOR SHORT} DATED 22ND MARCH 2018. THE ISSUE PERTAINS TO ASSESSMENT YEAR 2013-14 AND T HE SOLE QUESTION RAISED BY THE ASSESSEE IN THIS APPEAL CONCERNS DEDUCTIBILITY OF A SUM OF RS. 20,34,916/= ITA NO . 165 9/AHD/2018 . A.Y. 2015-16 3 WHICH WAS THE EMPLOYEES' CONTRIBUTION TOWARDS PROVI DENT FUND, ESI, ETC. IT APPEARS THAT THE ASSESSEE DID DEPOSIT SUCH AMOUNT O F CONTRIBUTION TOWARDS PF & ESIC ACCOUNTS, HOWEVER, MISSED THE DEADLINE PRESCRI BED IN THE STATUTES FOR SUCH PURPOSE. ON ACCOUNT OF THIS, THE REVENUE C/TAXAP/11 86/2018 ORDER DID NOT PERMIT DEDUCTION OF SUCH SUM FROM THE INCOME OF THE ASSESSEE. SUCH DISALLOWANCE THEREUPON BECAME THE SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL DISMISSED THE GROUND, RELYIN G UPON THE JUDGMENT OF THIS COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. GUJARAT STATE ROAD TRANSPORT CORPORATION LIMITED , REPORTED IN 366 ITR 170 [GUJARAT]. COUNSEL FOR THE APPELLANT DID NOT DISPUTE THAT THE ISSUE ON HANDS IS SQUARELY COVERED BY THIS COURT IN THE CASE OF CIT V. GSRTC [ SUPRA]. HE, HOWEVER, SUBMITTED THAT THE APPEAL IS PENDING AGAINST THE JUDGMENT OF THE HIGH COURT BEFORE THE SUPREME COURT AND SLP HAS BEEN GRANTED. THE AMOUNT INVOLVED IS NOT VERY LARGE AND IT WOULD BE EXTREMELY EXPENSIVE FOR THE ASSESSE E TO CARRY THIS IN APPEAL BEFORE THE SUPREME COURT. HE, THEREFORE, SUGGESTED THAT THE BENEFIT OF THIS JUDGMENT OF THE SUPREME COURT MAY BE MADE AVAILABLE TO THE ASSESSEE; AS AND WHEN RENDERED AND IN CASE, THE JUDGMENT OF THE HIGH COURT IS REVERSED. TWO CLEAR WAYS ARE POSSIBLE TO ENABLE THE APPELLANT - ASSESSEE TO GET BENEFIT OF THE JUDGMENT OF THE SUPREME COURT, IN CASE THE HIGH COURT JUDGMENT IS REVERSED. ONE IS TO DISMISS THIS C/TAXAP/1186/2018 ORDER APPE AL AND ALLOW THE ASSESSEE TO APPROACH THE SUPREME COURT; LIKE SOME OTHER ASSE SSES WOULD HAVE. THE OTHER WAY IS TO MAKE SOME ARRANGEMENT UNDER WHICH WITHOUT FILING THE APPEAL, THE ASSESSEE WOULD ALSO BE ABLE TO CLAIM THE BENEFIT OF THE JUDGMENT. LOOKING TO THE SMALLNESS OF THE DISPUTED AMOUNT, WE ADOPT THE LATT ER OPTION BY PROVIDING AS UNDER : THIS APPEAL AT THIS STAGE IS DISMISSED. HOWEVER, IF THE SUPREME COURT REVERSES THE JUDGMENT IN THE CASE OF CIT VS. GSRTC [SUPRA], IT W OULD BE OPEN FOR THE APPELLANT TO REVIVE THIS APPEAL BY FILING AN APPLICATION FOR SUCH PURPOSE WITHIN THREE MONTHS FROM THE DATE OF THE JUDGMENT. APPEAL STANDS DISPOSED OF ACCORDINGLY. 4. IN VIEW OF THE ORDER PASSED BY THE HONBLE GUJARAT HIGH COURT, WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE MATTER AFTER TAKING ITA NO . 165 9/AHD/2018 . A.Y. 2015-16 4 INTO ACCOUNT ORDER OF THE SUPREME COURT AS AND WHEN WILL BE PASSED BY THE HONBLE SUPREME COURT. ACCORDINGLY WILL DECIDE THE MATTER. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN OPEN COURT ON 30- 11- 2018 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 30/11/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD