M/S SHREE HANUMAN LOHA PVT LTD, RAIPUR (CG) V. THE INCOME TAX OFFICER -1(1), RAIPUR (CG)

ITA 18/BIL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7858 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 16-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.18/RPR/2016 ASSESSMENT YEAR : 2012-13 SHREE HANUMAN LOHA PVT. LTD., 251/252, INDUSTRIAL AREA, URLA, RAIPUR (CG). VS. ITO- 1(1), RAIPUR (CG). PAN : AABCN5505H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT JAIN, ADV. DEPARTMENT BY : SHRI SANJAY KUMAR, DR DATE OF HEARING : 14-08-2018 DATE OF PRONOUNCEMENT : 14-08-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 30.11.2015 OF THE LD. CIT(A)- 1, RAIPUR (CG) RELATI NG TO ASSESSMENT YEAR 2012-13. 2. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS T HE GROUND OF APPEAL NO.1 RELATING TO AD-HOC DISALLOWANCE OF RS.1,50,000/- ON ACCOUNT OF MANUFACTURING EXPENSES FOR WHICH LD. DR HAS NO OBJECTION. ACCORD INGLY, THE GROUND OF APPEAL NO.1 BY THE ASSESSEE IS DISMISSED. 3. GROUND NO.2 BY THE ASSESSEE READS AS UNDER :- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE A.O. O F RS.1,75,233/- ON ACCOUNT OF 2 ITA NO.18/RPR/2016 DELAY IN PAYMENT OF PF/ESIC. THE ADDITION MADE BY A.O. AND SUSTAINED BY LD. CIT(A) IS UNJUSTIFIED, UNWARRANTED AND UNCALLED FOR . 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING OF M.S. ANGLE, FLAT, CHANNEL, RIBBED BAR, CTD BAR ETC.. IT FILED ITS RE TURN OF INCOME ON 30.09.2012 DECLARING TOTAL INCOME AT RS.14,68,380/-. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE HAS DEBITED AN AMOUNT OF RS.25,642/- UNDER THE HEAD ESIC. HE OBSE RVED THAT AS PER ANNEXURE TO FORM NO.3CD OF THE AUDIT REPORT AN AMOUNT OF RS. 18,237/- WAS DEPOSITED IN THE GOVERNMENT ACCOUNT AFTER THE DUE DATE. SIMILAR LY, OUT OF EMPLOYEES CONTRIBUTION OF PF ACCOUNT OUT OF RS.1,73,586/- AN AMOUNT OF RS.1,56,996/- WAS DEPOSITED IN GOVERNMENT ACCOUNT AFTER THE DUE D ATE. HE, THEREFORE, DISALLOWED THE ABOVE TWO AMOUNTS U/S 36(1)(VA) OF T HE I.T. ACT. 5. IN APPEAL, THE LD. CIT(A) UPHELD THE ORDER OF TH E ASSESSING OFFICER BY OBSERVING AS UNDER :- 3.3 THE APPELLANT HAS CONTENDED THAT SECTION 43B O VERRIDES SECTION 36 DUE TO WHICH THE AMOUNT SHOULD BE ALLOWED. HOWEVER THE AP PELLANT HAS NOT APPRECIATED THE PROVISIONS OF THE ACT PROPERLY. THE AMOUNTS IN QUE STION RS.18,237/- AND RS.1,56,996/- ARE EMPLOYEES CONTRIBUTION TO ESIC A ND PF RESPECTIVELY. CLAUSE (B) OF SECTION 43B IS APPLICABLE TO EMPLOYERS CONTRIBUTIO N. EMPLOYEES CONTRIBUTION IS GOVERNED BY SECTIONS 2(24)(X) AND 36(1)(VA) WHEN T HE CONTRIBUTION IS RECEIVED BY THE EMPLOYER FROM EMPLOYEE, IT IS INCLUDED IN EMPLOYER S INCOME BY VIRTUE OF SECTION 2(24)(X). WHEN THE RESPECTIVE AMOUNT OF EMPLOYEES CONTRIBUTION IS PAID TO PF/ESIC ACCOUNT THE DEDUCTION IS ALLOWED UNDER SECTION 36(1 )(VA). HOWEVER THIS PAYMENT SHOULD BE MADE WITHIN THE DUE DATE PRESCRIBED UNDER THE PF ACT. IN THE PRESENT CASE, THE PAYMENT HAS BEEN MADE AFTER THE DUE DATE. THER EFORE, THE ASSESSEE WILL NOT GET ANY DEDUCTION. THIS DISALLOWANCE IS SUSTAINED. 3 ITA NO.18/RPR/2016 6. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, FILED A COPY OF THE DECISION OF THE RAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. HIRA FERRO ALLOYS LTD. VIDE ITA NO.358 TO 360/RPR/2014 ORDER DATED 18 .01.2018 FOR ASSESSMENT YEARS 2009-10 TO 2011-12 RESPECTIVELY. REFERRING T O THE SAID DECISION, HE SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING VARIO US DECISIONS HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND DISMISSED THE A PPEAL FILED BY THE REVENUE ON THE GROUND THAT THE ASSESSEE HAS DEPOSITED THE AMOU NT BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE I.T. ACT. HE AC CORDINGLY SUBMITTED THAT THIS BEING A COVERED MATTER THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND UPHELD BY THE LD. CIT(A) SHOULD BE DELETED. 8. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE LD. CIT(A). 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT THE EMPLOYEES CONTRIBUTION TO PF AND ESIC, ALTHOUGH DE POSITED AFTER THE DUE DATE PRESCRIBED UNDER THE RELEVANT ACT, HOWEVER, HAS BEE N DEPOSITED BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME U/S 139(1) O F THE I.T. ACT, 1961. THE RAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF HIRA FE RRO ALLOYS LTD. (SUPRA) WHILE ADJUDICATING THE IDENTICAL ISSUE AT PARA 55 OF THE ORDER HAS OBSERVED AS UNDER :- 4 ITA NO.18/RPR/2016 55. AFTER HEARING LD. D.R. AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE CIT(A) RELYING ON THE DECISION OF THE DELH I HIGH COURT IN CIT VS. AIMIL LIMITED [2010] 188 TAXMAN 265 (DELHI), WHEREIN, IT HAS BEEN HELD THAT THE EMPLOYEES CONTRIBUTION TOWARDS EPF AND ESI ETC. DE POSITED AFTER THE DUE DATE BUT BEFORE THE TIME ALLOWED FOR FILING THE RETURN U/S 1 39(1) WILL NOT CALL FOR ANY DISALLOWANCE U/S 36(1)(VA), HAS DELETED THE DISALLO WANCE. WE FIND THAT THE ASSESSEE HAS DEPOSITED THE AMOUNT BEFORE THE DUE DATE U/S 13 9(1). THEREFORE, WE CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUND OF APPEA L OF THE REVENUE. 10. SINCE THE ASSESSEE IN THE INSTANT CASE HAS UNDI SPUTEDLY DEPOSITED THE EMPLOYEES CONTRIBUTION TO PF AND ESIC BEFORE THE D UE DATE OF FILING OF THE RETURN, THEREFORE, RESPECTFULLY FOLLOWING THE DECIS ION OF THE TRIBUNAL CITED (SUPRA) THE DISALLOWANCE MADE BY THE ASSESSING OFFI CER AND UPHELD BY THE LD. CIT(A) IS DELETED. THE GROUND RAISED BY THE ASSESS EE IS ALLOWED. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 14 TH AUGUST, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14-08-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR