Excel Academy of Security Training Private Limited, Hyderabad V. Income Tax Officer, Ward-17(2), Hyderabad

ITA 1797/Hyd/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8190 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 04-12-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 03-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C ROUT
• Section: 43B; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD SMC BENCH ES , HYDERABAD BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER ITA NO. 1797 / HYD /201 7 (ASST. YEAR : 20 14 - 15 ) EXCEL ACADEMY OF SECURITY TRAINING PRIVATE LIMITED, 6 - 3 - 652, A/3, 1 ST FLOOR KAUTILYA, AMRUTHA ESTATES, NIMS ROAD, SOMAJIGUDA, HYDERABAD. V S . IT O , WARD - 1 7 ( 2 ), HYDERABAD . PAN NO. AABCE 2896 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASRSS SIVA PRASAD AR . DEPARTMENT BY : SHRI AC ROUT SR. DR DATE OF HEARING : 04 / 12 /201 9 . DATE OF PRONOUNCEMENT : 22 / 0 1 /20 20 . O R D E R TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 5 , HYDERABAD , DATED 22 /0 8 /201 7 FOR THE ASSESSMENT YEAR 20 14 - 15 . 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO EMPLOYEES CONTRIBUTION PAID BY THE ASSESSEE BEFORE DUE DATE OF FILING OF THE RETURN. THE CASE OF THE ASSESSING OFFICER IS THAT THE ASSESSEE - COMPANY IS PROVIDING S ECURITY SERVICES AND WAS EMPLOYING A LARGE NUMBER OF PERSONNEL FOR PROVIDING THE SAME . DURING THE COURSE OF 2 ITA NO. 1797 / HYD/2017 ( EXCEL ACADEMY OF SECURITY TRAINING PVT. LTD. ) VERIFICATION OF VARIOUS HEADS OF THE EXPENDITURE, IT WAS NOTICED THAT THE ASSESSEE - COMPANY REMITTED EMPLOYEES CONTRIBUTION OF ESI & PF BELATEDLY AND IN VIOLATION OF PROVISIONS OF SECTION 36(1)(VA) OF THE ACT AND BY FOLLOWING THE CBDT CIRCULAR NO . 22/2015 DISALLOWED THE AMOUNT OF RS. 2,31,783/ - TOWARDS ESI AND RS. 6,31,523/ - TOWARDS PF AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE - COMPANY . 3 . ON APPEAL, LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 4 . ON APPEAL BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS COVERED BY THE DECISION OF THE ITAT, VISAKHAPATNAM BENCH IN THE CASE OF DCIT VS. M/S.EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD., IN ITA NO. 609/VIZ/2014, DATED 29/07/2016 AND SUBMITTED THAT WITHIN THE DUE DATE OF FILING OF THE RETURN, THE CONTRIBUTION OF THE EMPLOYEES WERE DEPOSITED IN THE GOVERNMENT ACCOUNT, THEREFORE, S AME MAY BE ALLOWED. 5. ON OTHER HAND, LD.DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 6 . I HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 3 ITA NO. 1797 / HYD/2017 ( EXCEL ACADEMY OF SECURITY TRAINING PVT. LTD. ) 7 . THE ONLY ISSUE INVOLVED IN THIS APPEAL IS WHETHER THE CONTRIBUTION RECEIVED FROM THE EMPLOYEES PAID BEFORE DUE DATE OF FILING OF THE RETURN, IS ALLOWABLE OR NOT. THE VERY SAME ISSUE HAS BEEN CONSIDERED BY THE ITAT, VISAKHAPATNAM BENCH IN THE CASE OF M/S. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD. (S UPRA) WHEREIN IT HAS BEEN HELD AS UNDER: - 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE A.O. MADE ADDITIONS TOWARDS BELATED PAYMENT OF EMPLOYEES CONTRIBUTIONS TO PF. ACCORDING TO THE A.O., EMPLOYEES CONTRIBUTION TO PROVIDENT FUND IS DEDUCTIBLE UNDER THE PROVISIONS OF SECTION 36(1)(VA) OF THE ACT, IF THE SAME IS PAID ON OR BEFORE THE DUE DATE SPECIFIED UNDER THE PROVIDENT FUND ACT. THE A.O. FURTHER WAS OF THE OPINIO N THAT IN VIEW OF THE CLEAR PROVISIONS OF SECTION 2(24)(X) R.W.S. 36(1)(VA) OF THE ACT, ANY RECOVERY FROM EMPLOYEES TOWARDS PROVIDENT FUND CONTRIBUTION IS DEEMED TO BE INCOME OF THE ASSESSEE, IF THE EMPLOYER NOT PAID THE SAME TO THE PROVIDENT FUND ACCOUNT OF THE EMPLOYEE WITHIN DUE DATE SPECIFIED UNDER THE PROVISIONS OF PF ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT SECOND PROVISO TO SECTION 43B OF THE ACT PROVIDES THAT NO DEDUCTION SHALL BE ALLOWED UNLESS SUCH SUM IS ACTUALLY BEEN PAID ON OR BEFORE DUE DATE AS SPECIFIED IN EXPLANATION TO 36(1)(VA) OF THE ACT WHICH WAS OMITTED BY THE FINANCE ACT, 2003 W.E.F. 1.4.2004 AND ACCORDINGLY, THERE WAS NO SPECIAL PROVISION REGARDING EMPLOYEES CONTRIBUTION TO PF. IT IS FURTHER CONTENDED THAT AS PER THE AMENDED P ROVISIONS OF SECTION 43B OF THE ACT, ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO PF SHALL BE ALLOWED, IF THE SAME IS PAID ON OR BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. 6. THE ONLY ISSUE TO BE RE SOLVED IS WHETHER THE ASSESSEE WOULD BE ENTITLED TO CLAIM DEDUCTION FOR THE EMPLOYEES CONTRIBUTION MADE TO PF AFTER THE DUE DATE PRESCRIBED UNDER THE PF ACT, BUT BEFORE THE DUE DATE PRESCRIBED FOR FILING OF INCOME TAX RETURN IN THE LIGHT OF THE PROVISIONS CONTAINED IN SECTION 36(1)(VA) OF THE ACT AND SECTION 43B(B) OF THE ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT THERE IS NO DISTINCTION BETWEEN EMPLOYER AND EMPLOYEE CONTRIBUTION AFTER OMISSION OF SECOND PROVISO OF SECTION 43B OF THE ACT BY FINANCE AC T, 2003 W.E.F. 1.4.2004. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THERE IS NO DIFFERENCE BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION UNDER THE PF ACT. SECTION 6 OF PROVIDENT FUND ACT PROVIDES FOR CONTRIBUTION AND THE MANNER IN W HICH SUCH CONTRIBUTION SHALL BE MADE. PARAGRAPH 30 OF THE PF SCHEME PROVIDES 4 ITA NO. 1797 / HYD/2017 ( EXCEL ACADEMY OF SECURITY TRAINING PVT. LTD. ) FOR PAYMENT OF CONTRIBUTIONS. AS PER THE SAID SCHEME, THE EMPLOYER AT THE FIRST INSTANCE SHALL MAKE THE TOTAL CONTRIBUTION INCLUDING EMPLOYEES SHARE. PARAGRAPH 32 PROVIDES FOR RECOVERY OF MEMBER SHARE OF CONTRIBUTION AND AS PER THE SCHEME, THE EMPLOYER CAN RECOVER THE EMPLOYEES SHARE FROM THE WAGES PAID TO THE EMPLOYEE. THEREFORE, AS PER THE PF ACT AND SCHEME OF CONTRIBUTIONS, THE CONTRIBUTIONS MEANS AND INCLUDE BOTH EMPLOYEE S AND EMPLOYERS SHARE. SIMILARLY, SECTION 2(C) OF THE PROVIDENT FUND ACT DEFINES THE CONTRIBUTION TO MEAN A CONTRIBUTION PAYABLE IN RESPECT OF A MEMBER UNDER THE SCHEME OR THE CONTRIBUTION PAYABLE IN RESPECT OF AN EMPLOYEE TO WHOM THE SCHEME APPLIES. TH ERE IS A PRESCRIBED MODE OF PAYMENT OF CONTRIBUTIONS UNDER THE PF ACT. UNDER THE SAID ACT, THE EMPLOYER SHALL CONTRIBUTE BOTH EMPLOYEES AND EMPLOYER SHARE ALONG WITH ADMINISTRATIVE CHARGES BEFORE THE DUE DATE SPECIFIED UNDER THE PF ACT. THE ACT PRESCRIBE D ONLY ONE DUE DATE FOR DEPOSITING THE CONTRIBUTION I.E. 15 TH OF SUBSEQUENT MONTH WITH THE GRACE PERIOD OF 5 DAYS WHICH INDICATES THAT THERE IS NO DIFFERENCE BETWEEN EMPLOYEE AND EMPLOYER CONTRIBUTION. IF THE LEGISLATURE INTENDS TO DIFFERENTIATE EMPLOYEES AND EMPLOYER CONTRIBUTION, THEN THERE WOULD HAVE BEEN TWO DUE DATES LIKE IN THE CASE OF INCOME TAX ACT. THEREFORE, FROM THE ABOVE, IT IS CLEAR THAT THE PROVIDENT FUND ACT DOES NOT DIFFERENTIATE EMPLOYEES AND EMPLOYER CONTRIBUTION AND CONTRIBUTION MEANS BO TH EMPLOYEES AND EMPLOYER CONTRIBUTION UNDER THE PF SCHEME. 7. SECTION 43B OF THE ACT PROVIDES FOR CERTAIN DEDUCTIONS TO BE ALLOWED ONLY ON ACTUAL PAYMENT BASIS. SUB CLAUSE (B) OF SECTION 43B OF THE ACT COVERS ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLO YER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF THE EMPLOYEES. THE PROVISO TO SECTION PROVIDES THAT ANY SUM PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE OF FURNISHING RETURN O F INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE MADE UNDER THE PROVISIONS OF SECTION 43B OF THE ACT. A CAREFUL CONSIDERATION OF SECTION 43B OF THE ACT, IT IS CLEAR THAT AN EXTENSION IS GRANTED TO THE ASSESSEE TO MAKE THE PAYMENT OF PF CONTRIBU TIONS OR ANY OTHER FUND TILL THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT. THEREFORE, IN OUR OPINION, THERE IS NO DIFFERENCE BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION TO PF AND IF SUCH CONTRIBUTION IS MADE ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN DEDUCTION IS TO BE ALLOWED UNDER THE PROVISIONS OF SECTION 43B OF THE ACT. 8. THE HONBLE KARNATAKA HIGH COURT, IN THE CASE OF ESSAE TERAOKA (P) LTD. VS. DCIT 366 ITR 408 TOOK THE VIEW THAT THE W ORD CONTRIBUTION OCCURRING IN SECTION 43B OF THE ACT WOULD INCLUDE EMPLOYEES CONTRIBUTION TO PF IN THE LIGHT OF THE DEFINITION OF THE WORD CONTRIBUTION AS PER THE PROVISIONS OF SECTION 2(C) OF THE PF ACT. AS PER THE SAID SECTION, CONTRIBUTION WOULD MEAN BOTH EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION. ACCORDINGLY, IT WAS HELD THAT THE PROVISIONS OF SECTION 43B OF THE ACT ALLOWING DEDUCTION FOR PAYMENT MADE BEFORE THE DUE DATE OF FILING 5 ITA NO. 1797 / HYD/2017 ( EXCEL ACADEMY OF SECURITY TRAINING PVT. LTD. ) OF INCOME TAX RETURN CANNOT BE IGNORED. SIMILARLY, THE ITAT, HYDERABAD TRIBUNAL IN THE CASE OF TETRA SOFT (INDIA) PVT. LTD. VS. ACIT (2015) 40 ITR (TRIB) 470 HELD THAT WHEN ASSESSEE REMITTED EMPLOYEES CONTRIBUTION TO PF WITHIN DUE DATE OF FILING RETURN OF INCOME U/S 139(1) OF THE ACT, AMOUNT OF EMPLOYEES CONTRIBUT ION TO PF CANNOT BE DISALLOWED. SIMILAR VIEW WAS UPHELD BY THE CHENNAI BENCH OF THE ITAT, IN THE CASE OF ACIT VS. FARIDA SHOES PVT. LTD. (2016) 46 CCH 29. THE COORDINATE BENCH HELD THAT IF ASSESSEE HAD NOT DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PROVIDEN T FUND UP TO THE DUE DATE AS PRESCRIBED UNDER RELEVANT STATUTE, BUT BEFORE DUE DATE OF FILING OF RETURN NO DISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE ACT. IN THE CASE OF CIT VS. UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD. 35 T AXMAN 616, THE HONBLE HIGH COURT OF RAJASTHAN, AFTER REFERRING TO THE APEX COURT DECISION IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306 & CIT VS. VINAY CEMENT LTD. HELD THAT THE DEDUCTIONS SHOULD BE ALLOWED FOR THE PAYMENT OF EMPLOYEES CONTRIBU TION MADE BEFORE THE DUE DATE OF FILING OF RETURN. SIMILARLY, IN THE CASE OF CIT VS. STATE BANK OF BIKANER, THE HONBLE RAJASTHAN HIGH COURT HELD THAT CONTRIBUTION PAID AFTER THE DUE DATE UNDER THE RESPECTIVE ACT, BUT BEFORE FILING THE RETURN OF INCOME U/ S 139(1) OF THE ACT CANNOT BE DISALLOWED U/S 43B OF THE ACT AND OR U/S 36(1)(VA) OF THE ACT. 9. THE LD. D.R. RELIED UPON THE DECISION OF HONBLE HIGH COURT OF KERALA, IN THE CASE OF CIT VS. MERCHEM LTD, REPORTED IN (2015) 378 ITR 443 AND SUBMITTED THAT EMP LOYEES CONTRIBUTION TO PROVIDENT FUND IS ALLOWED AS DEDUCTION, IF THE SAME IS DEPOSITED ON OR BEFORE THE DUE DATE SPECIFIED UNDER THE PROVISIONS OF PROVIDENT FUND ACT. THE D.R. ALSO RELIED UPON THE DECISION OF GUJARAT HIGH COURT, REPORTED IN (2014) 366 IT R 170, WHEREIN THE HONBLE GUJARAT HIGH COURT HELD THAT SINCE ASSESSEE HAD NOT DEPOSITED SAID CONTRIBUTION TO RESPECTIVE FUND ACCOUNT ON THE DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36(1)(VA) OF THE ACT, DISALLOWANCE MADE BY THE A.O. WAS JUST AND PROPE R. THOUGH, THE D.R. RELIED UPON CERTAIN JUDICIAL PRECEDENTS WHICH ARE IN FAVOUR OF THE REVENUE, IN VIEW OF THE DECISION OF HONBLE SUPREME COURT, IN THE CASE OF CIT VS. M/S. VEGETABLES PRODUCTS LTD. REPORTED IN 88 ITR 192, WHEREIN THE HONBLE SUPREME COURT HELD THAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED, THEREFORE, BY RESPECTFULLY FOLLOWING THE DECISION OF SUPREME COURT, WHEN DIVERGENT VIEWS ARE EXPRESSED BY DIFFERENT JUDICIAL FORUMS, WE PREFER TO FOLLOW THE VIEWS EXPRESSED BY THE COURTS WHICH ARE IN FAVOUR OF THE ASSESSEE. 10. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO FOLLOWING THE JUDICIAL PRECEDENTS AS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THER E IS NO DISTINCTION BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION TO PF, AND IF THE TOTAL CONTRIBUTION IS DEPOSITED ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE MADE TOWARDS EMPLOYEES CONTRIBUT ION TO PROVIDENT FUND. THE CIT(A) AFTER CONSIDERING THE RELEVANT DETAILS RIGHTLY DELETED THE ADDITIONS MADE BY 6 ITA NO. 1797 / HYD/2017 ( EXCEL ACADEMY OF SECURITY TRAINING PVT. LTD. ) THE A.O. WE DO NOT SEE ANY REASONS TO INTERFERE WITH THE ORDER OF THE CIT(A). HENCE, WE INCLINED TO UPHOLD THE CIT(A) ORDER AND DISMISS THE APP EAL FILED BY THE REVENUE. 8 . THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE VISAKHAPATNAM TRIBUNAL IN THE CASE OF M/S. EASTERN POWER DISTRIBUTION COMPANY LTD . (SUPRA), I DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE TOWARDS ESI & PF . THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOW ED . 9. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 2 N D DAY OF JAN. , 20 20 . S D / - ( V. DURGA RAO ) JUDICIAL MEMBER DATED : 2 2 N D JANUARY , 20 20 . VR/ - COPY TO: 1. THE ASSESSEE EXCEL ACADEMY OF SECURITY TRAINING PRIVATE LIMITED, 6 - 3 - 652, A/3, 1 ST FLOOR KAUTILYA, AMRUTHA ESTATES, NIMS ROAD, SOMAJIGUDA, HYDERABAD. 2. THE REVENUE ITO, WARD - 17(2), HYDERABAD. 3. THE PR. CIT - 5, HYDERABAD. 4. THE CIT(A) - 5, HYDERABAD. 5. THE D.R . , HYDERABAD. 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.