Sanghvi Diamond Mfg. Pvt. Ltd., Surat V. The Income Tax Officer, Ward-2(1)(2), Surat

ITA 168/SRT/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7223 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 16-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside
• Section: 43B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITA NO.1016/AHD/2017 ASSESSMENT YEAR: 2013-14 M/S.SANGHVI DIAMONDS MFG. PVT. LTD., 103 TO 113, SANGHVI BUILDING, OP. PRANNAT HOSPITAL, VED ROAD, SURAT. [PAN: AADCS 4321 C] VS. THE INCOME TAX OFFICER, WARD-2(1)(2), SURAT. (APPELLANT) (RESPONDENT) ITA NO.168/SRT/2017 ASSESSMENT YEAR: 2014-15 M/S.SANGHVI DIAMONDS MFG. PVT. LTD., 103 TO 113, SANGHVI BUILDING, OP. PRANNAT HOSPITAL, VED ROAD, SURAT. [PAN: AADCS 4321 C] VS. THE INCOME TAX OFFICER, WARD-2(1)(2), SURAT. (APPELLANT) (RESPONDENT) O R D E R PER H.S. SIDHU, JM: THESE TWO APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE IMPUGNED ORDERS PASSED BY THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-2, SURAT DATED 25.08.2016 AND 31.08.2017 PERTAINING TO ASSESSMENT YEAR 2013-14 AND 2014-15 RESPECTIVELY. ASSESSEE BY MRS. EKTA S AN GHAVI AR DEPARTMENT BY SHRI R.P.RASTOGI SR.DR DATE OF HEARING 1 6 .0 7 .2019 DATE OF PRONOUNCEMENT 1 6 .0 7 .2019 2 2. THERE IS 124 DAYS DELAY IN FILING OF THE PRESENT APPEAL I.E. 1016/AHD/2017. REASONS MENTIONED BY THE ASSESSEE IN THE AFFIDAVIT DATED 08.07.2019 IS REGARDING THE APPEAL IN FORM NO.36 FOR A.Y. 2013-14 HAS BEEN FILED ON 27.04.2017 AGAINST THE ORDER OF LD.CIT(A)-2, RECEIVED ON 25.08.2016 AND DUE TO NON-AVAILABILITY OF DIRECTOR AND OTHER EXIGENCIES OF SERVICE AS PLACED ON APPEAL AT AHMEDABAD THE ASSESSEE IS UNABLE TO FILE APPEAL WITHIN THE TIME LIMIT OF 60 DAYS IN FORM NO.36 AND REQUESTED FOR CONDONATION OF DELAY IN DISPUTE. 3. THE LD.DEPARTMENTAL REPRESENTATIVE OPPOSED THE REQUEST OF THE ASSESSEE, BUT KEEPING IN VIEW OF THE REASONS MENTIONED BY THE ASSESSEE WE ARE OF THE VIEW IN THE INTEREST OF JUSTICE, DELAY IN DISPUTE DESERVED TO BE CONDONED AND WE CONDONED THE DELAY AND ADMIT THE APPEAL FILED BY THE ASSESSEE FOR HEARING. 4. AT THE TIME OF HEARING, THE LD.COUNSEL FOR THE ASSESSE MR.EKTA SANGHAVI, LD.AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND STATED THAT THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS.14,84,660/- WHEREIN AFTER CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER ON 29.01.2016 WITH ASSESSED INCOME OF RS.27,61,190/- AND AN ADDITION OF RS.12,76,525/- FOR A.Y. 2013-14 MADE ON ACCOUNT OF DEDUCTION CLAIMED OF EMPLOYEES CONTRIBUTION OF ESI AND PF U/S.36(1)(VA) R.W.S. 2(24)(X) OF THE INCOME TAX ACT, 1961. THE ASSESSEE FILED 3 APPEAL AGAINST THE ASSESSMENT ORDER BEFORE THE LD.FIRST APPELLATE AUTHORITY WHO VIDE ORDER DATED 25.08.2016 AND DISMISSED THE APPEAL FILED BY THE ASSESSEE CONFIRMING THE ADDITION ON DISPUTE AMOUNTING TO RS.12,76,525/-. SIMILARLY, THE ASSESSING OFFICER ALSO MADE ADDITION OF RS.10,26,166/- ON ACCOUNT OF EMPLOYEE SHARE OF PF AND EMPLOYEE SHARE OF ESI FOR THE A.Y. 2014- 15 VIDE HIS ORDER DATED 29.01.2016 U/S.0143(3) OF THE INCOME TAX ACT, 1961 AND APPEAL FILED BY THE ASSESSEE DISMISSED BY THE LD.CIT(A) VIDE IMPUGNED ORDER DATE 25.08.2016. AGAINST BOTH IMPUGNED ORDERS PASSED BY THE LD.FIRST APPELLATE AUTHORITY ASSESSEE HAS FILED THE PRESENT APPEALS. SINCE THE ISSUE INVOLVED IN BOTH THE APPEALS ARE SIMILAR, THEREFORE WE ARE DISPOSING THESE TWO APPEALS BY PASSING ONE CONSOLIDATED ORDER. 5. AT THE TIME OF HEARING, THE LD.COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE HAS MADE THE PAYMENT IN DISPUTE MARGINALLY LAID BY ONE DAY OR TWO BECAUSE OF NON-AVAILABILITY OF FUNDS AND THERE WAS NO INTENTION TO HOLD BACK THE MONEY OF ITS EMPLOYEES OF THE ASSESSEE COMPANY. ALL THE PAYMENT IN DISPUTE WERE MADE BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME U/S.139 OF THE INCOME TAX ACT. SHE, FURTHER STATED THAT INTEREST AND PENALTIES ON MAKING SUCH PAYMENT LATE ARE ALSO DULY BORN BY THE ASSESSEE COMPANY, HENCE NO RIGHT OF EMPLOYEE HAVE BEEN DEPRIVED. SHE FURTHER STATED THAT KEEPING IN VIEW OF THE VARIOUS JUDGMENTS OF HON'BLE HIGH COURTS CONTRIBUTION IN SECTION 43B OF THE IMPUGNED CONTRIBUTION OF THE EMPLOYER AND THE EMPLOYEES / BEING SO CONTRIBUTION MADE ON OR BEFORE THE DUE DATE U/S.139(1) OF THE ACT EMPLOYEE 4 IS ENTITLED FOR DEDUCTION. IN SUPPORT HER CONTENTIONS, SHE CITED DECISIONS OF HON'BLE HIGH COURTS AS UNDER: KARNATAKA HIGH COURT: FEBRUARY 4, 2014 [2014] 366 ITR 408 (KAR) M/S. ESSAE TERAOKA PVT LTD VS DEPUTY COMMISSIONER OF INCOME-TAX KARNATAKA HIGH COURT: [2008] 298 ITR 141 (KARN) : JULY 3, 2007 CIT VS. SABARI ENTERPRISES RAJASTHAN HIGH COURT : [2014] 363 ITR 307 :JANUARY 6, 2014 CIT, JAIPUR-II, VS. JAIPUR VIDYUT VITRAN NIGAM LTD AND RAJASTHAN RAJYA VIDYUT UTPADAN NIGHM LTD. RAJASTHAN HIGH COURT :[2014] 366 ITR 163 : MAY 13, 2013 CIT, UDAIPUR VS. M/S.UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LIMITED, UDAIPUR RAJASTHAN HIGH COURT [2014] 363 ITR 70 : JANUARY 6, 2014 CIT VS. M/S. STATE BANK OF BIKANER & JAIPUR AND JAIPUR VIDYUT VITARAN NIGAM LTD. RAJASTHAN HIGH COURT : AUGUST 4, 2016 CIT, JAIPUR-2 VS. M/S.RAJASTHAN STATE BEFVERAGES CORPN. LTD., 6. SHE REQUESTED THAT DISALLOWANCE OF DEDUCTION ON ACCOUNT OF EMPLOYEE CONTRIBUTION OF ESI AND PF U/S.36(1)(VA) R.W.S 2(24)(X) MAY BE ALLOWED OF ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 7. ON THE CONTRARY, THE LD.DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED THE REQUEST OF THE ASSESSEE AND STATED THAT LD.FIRST APPELLATE AUTHORITY, THE REVENUE AUTHORITY DISALLOWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION DATED 13.01.2014, THEREFORE, THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 5 8. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGNED ORDER, WE SET ASIDE THIS MATTER TO THE FILE OF THE LD.CIT(A) WITH THE DIRECTION THAT SLP IS PENDING BEFORE THE HON'BLE SUPREME COURT OF INDIA WITH REGARD TO DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TO PF AND ESIC IS PENDING. AS AND WHEN MATTER WILL BE DECIDED BY THE HON'BLE APEX COURT. ACCORDINGLY, MATTER WILL BE DECIDED BY THE LD.CIT(A) AS PER PROVISIONS OF LAW AND DIRECTION OF THE HON'BLE SUPREME COURT OF INDIA. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS SET ASIDE FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 16-07-2019. SD/- SD/- (O.P. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16/07/2019 GANGADHARA RAO.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. PR.CIT 4. CIT(A) 5. DR / / TRUE COPY / / / / TRUE COPY / / ASST. REGISTRAR, ITAT, SURAT