UMBERTO CERAMICS INTERANATIONAL PVT. LTD, MUMBAI V. CIT (A) NFAC, DELHI

ITA 1663/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7317 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2019-2020
• Appeal Filed On: 20-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 2; 43B; 234B; 143(1); 250; 139(1)

Judgement Text

ITA No. 163/Mum/2021 A.Y. 2019-20 Umberto Ceramics International Pvt. Ltd Vs. CIT(A) 1 IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORESHRI AMARJIT SINGH, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER IT A No. 1 663/ Mu m/ 2021 ( A. Y 2019-20) U mbert o Ceramics Int er nati onal Pvt. Ltd. 302, Maanav Man sion Mc. Donald , Sa ro jini R oad, Vile P arle W est Mu mbai – 400058 Vs . CI T( A) Nati onal F ac elss Appeal Cent re , Delhi लेख सं./ज आइआर सं./ P AN /GIR N o. :A ABC U2672E Appellant .. Respondent Appellant by : Yogesh Shah Respondent by : Achal Sharma Date of Hear in g 01.03.2022 Date of Pr onouncement 09.03.2022 आदेश / O R D E R PER AMARJIT SINGH, AM: The present appeal filed by the assessee against the order passed by the ACIT(CPC) u/s 143(1) of the I.T. Act, 1961, dated 16.03.202 for A.Y. 2019-20. The assessee has raised the following grounds before us: “1. The order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, u/s 250 is erroneous and requires to be modified. It is submitted that it be so held now. ITA No. 163/Mum/2021 A.Y. 2019-20 Umberto Ceramics International Pvt. Ltd Vs. CIT(A) 2 2. The learned CIT(A) erred in facts and in law in confirming the addition of Rs. 54,50,560/- in respect of employee's contribution to Provident Fund paid on or before the due date of filing return of income and allowable u/s43B of the Act. It is submitted that it be so held now. 2.1. The learned CIT(A) erred in not following decision of Jurisdictional High Court in case of CIT Vs. Hindustan Organics Chemicals Ltd 366 ITR 1 and CIT v. Ghatge Patil Transports Ltd 228 Taxman 340. It is submitted that it be so held now. 3. The learned CIT(A) ought to have directed AO to set off brought forward unabsorbed depreciation against income computed under the head business and profession. It is submitted that it be so held now. 4. The learned CIT(A) ought to have directed AO to delete interest u/s 234B of the Act. It is submitted that it be so held now. Your appellant prays for leave to add to alter and/or to amend any of the grounds before the final hearing of the appeal.” 2. The assessing officer has disallowed a sum of Rs.54,50,561/- in respect of delay in payment of employees contribution towards provident fund while processing the return of income u/s 143(1) of the Act. The assessee has filed the appeal before the ld. CIT(A) and submitted that the entire contribution has been paid before due date of filing the return of income. However, the ld. CIT(A) has dismissed the appeal of the assessee. On the other hand, the ld. D.R has supported the order of the ld. CIT(A). 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 GhatgePatil Transports Ltd. (supra). In the case of GhatgePatil Transports Ltd. (supra), the Hon’ble jurisdictional High Court held that both employers and employee’s contributions are covered under amendment to ITA No. 163/Mum/2021 A.Y. 2019-20 Umberto Ceramics International Pvt. Ltd Vs. CIT(A) 3 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 MavinahalliShivanajappa Vijay Kumar Vs. DCIT (ITA No. 596 & 597/Bang/2021) and AdhyarAnandBhavan 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. ITA No. 163/Mum/2021 A.Y. 2019-20 Umberto Ceramics International Pvt. Ltd Vs. CIT(A) 4 7. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 09.03.2021 Sd/- Sd/- (AMARJIT SINGH) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 09.03.2022 Rohit: PS आदेश की े /Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. संबंिधत आयकर आय / The CIT(A) 4. आयकर आय (अपील) / Concerned CIT 5. िवभागीय ि ि ि , आयकर अपीलीय अि करण, अहमदाबाद / DR, ITAT, Mumbai 6. $% फ ईल / Guard file. आदेशानुसार/BY ORDER, स ािपत ित //True Copy// ( Asst. Registrar) ITAT, Mumbai