UMBERTO CERAMICS INT P.LTD, MUMBAI V. CIT (A) NFAC, DELHI

ITA 1661/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5826 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 20-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AIRIJU JAIKIRAN
• Keywords: Set aside
• Section: 2; 43B; 139(1)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “SMC” Bench, Mumbai Shri Shamim Yahya (AM) I.T.A. No. 1661/Mum/2021 (A.Y. 2017-18) I.T.A. No. 1662/Mum/2021 (A.Y. 2018-19) Umerto Ceramics International Private Limited 302, Maanav Mansion Mc.Donald, Sarojini Road Vile Parle West Mumbai-400 058. PAN : AABCU2672E Vs. CIT(A) National Faceless Appeal Centre Delhi (Appellant) (Respondent) Assessee by Shri Yogesh Shah Department by Shri Airiju Jaikiran Date of Hearing 29.03.2022 Date of Pronouncement 29.03.2022 O R D E R These are appeals by the assessee against respective orders of learned CIT(A) pertain to A.Y. 2017-18 & 2018-19. 2. The issues are common, appeals are heard together and disposed off by this common order. 3. Common issue raised pertains to learned CIT(A)’s order wherein he has confirmed the addition of Rs. 22,37,745/- in respect of employees’ contribution to provident fund paid on or before the due date of filing of the return of income and allowable under section 43B of the I.T. Act. For A.Y. 2018-19 the figure is Rs. 18,50,079/-. 4. I have heard both the parties and perused the record. Learned counsel of the assessee submitted that the issue is squarely covered in favour of the assessee by the decision of the ITAT in assessee’s own case. Umerto Ceramics International Private Limited 2 5. Learned Departmental Representative did not controvert the above submission. 6. I note that this ITAT in assessee’s own case in ITA No. 1663/Mum/2021 for A.Y. 2019-20 vide order dated 9.3.2022 has held as under : 6. Heard both sides and perused the material on record. Without rendering the facts as elaborated above, the assessee has deposited employee’s contribution to PF/ESIC after due date specified in PF/ESIC Acts but before the due date of filing the return of income as prescribed in section 139(1) of the act. With the assistance of Ld. Representative, we have perused the decision of Hon’ble Jurisdiction Bombay High Court in the case of CIT v. Hindustan Organics Chemicals Ltd. (supra) and Ghatge Patil Transports Ltd. (supra). In the case of Ghatge Patil Transports Ltd. (supra), the Hon’ble jurisdictional High Court held that both employers and employee’s contributions are covered under amendment to section 43B and judgment of the Hon’ble Supreme Court in CIT v. Alom Extrusions Ltd. [2009] 319 ITR 306/185 Taxman 416 and payment made was subject to benefit of section 43B. We have also gone through the decision of ITAT Mavinahalli Shivanajappa Vijay Kumar Vs. DCIT (ITA No. 596 & 597/Bang/2021) and Adhyar Anand Bhavan Sweets India P. Ltd. Vs. ACIT (ITA No. 402 & 403/Chennai/2021) on the issue of applicability of the amended provisions of Explanation 2 to section 36(1)(va). The ITAT Bangalore vide ITA No. 596/Bang/2021 in the case of Shivanajappa Vijay Kumar (supra)after following the decision of Hon’ble High Court of Karnataka held that the amendment made to section 36(1)(va) of the Act will have prospective application. We have also perused the decision of ITAT Chennai in the case of Adhyar Anand Bhavan Sweets India P. Ltd. (supra), wherein after following the decision of Hon’ble High Court of Madras in the case of M/s Industrial Security and Intelligence India P. Ltd. in TCA No. 585/2015 held that the amendment brought in the statute by Finance Act, 2021, the provisions of section 36(1)(va) r.w.s. 43B of the Act amended by inserting Explanation 2 is prospective and not retrospective. 6.1 In the case of the assessee, it had remitted the employee’s contribution towards PF/ESIC beyond the due date for payment as specified in PF/ESIC Act, but within the due date for filing the return of income, therefore, following the aforesaid decisions, we considered that Ld. CIT(A) is not justified in disallowing the claim of deduction of the assessee. Accordingly, we decide this issue in favour of the assessee and disallowance made by the Assessing Officer is deleted. Since we have decided the issue in favour of the assessee, therefore, ground No. 1 of the assessee is not required adjudication. Umerto Ceramics International Private Limited 3 7. Since the facts are identical and no contrary decision has been shown, I follow the aforesaid precedent and set aside the orders of the authorities below and decide the issue in favour of the assessee. 8. In the result, the appeals stand allowed. Order pronounced in the open court on 29.3.2022. Sd/- (SHAMIM YAHYA) ACCOUNTANT MEMBER Mumbai; Dated : 29/03/2022 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai