Trimurti Cement Products Pvt. Ltd, Aurangabad V. Income Tax Officer, Ward-1(9), Aurangabad

ITA 182/PUN/2023

AI Insights

The case involves Trimurti Cement Products Pvt. Ltd., the appellant, contesting the orders of the Commissioner of Income Tax (Appeals) which confirmed disallowances made under sections 143(3)(1)(a)(iv), 43B, and 36(1)(va) of the Income Tax Act, 1961 for the assessment year 2018-19. The primary issues were the disallowance of Rs. 48,02,169 related to GST and Service Tax payments, and Rs. 58,373 concerning delayed payments of Employees Contribution to PF/ESIC. The Tribunal found procedural inadequacies in the CIT(A)'s handling of the first issue and remanded it for a thorough examination, while it upheld the second issue based on Supreme Court's decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134304 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 17-04-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 13-02-2023
• Other Referred Cases: Checkmate Services (P.) Ltd. Vs. Commissioner of Income- tax-1
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B; 143(1)

Judgement Text

आयकर अपीलीय अिधकरण “बी” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “B” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.182/PUN/2023 िनधाᭅरण वषᭅ / Assessment Year : 2018-19 Trimurti Cement Products Pvt. Ltd., X-340, Gala No.7 & 19, Behind Dremlana Hotel, Bajaj Nagar, MIDC, Waluj, Aurangabad – 431136. PAN: AAFCT 6914 L Vs The Income Tax Officer, Ward-1(9), Aurangabad. Appellant/ Assessee Respondent /Revenue Assessee by Smt. Deepa Khare – AR Revenue by Shri M.G.Jasnani – DR Date of hearing 18/04/2023 Date of pronouncement 20/04/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax(Appeals)[NFAC], Delhi dated 22.03.2022 emanating from order under section 143(3)(1)(a)(iv) of the Income Tax Act, 1961 for the A.Y.2018-19 dated 16.10.2019. The Assessee has raised the following grounds of appeal: “1. The CIT(A) erred in law and on facts in confirming disallowance of expenditure of Rs 48,02,169/- when the amount is not debited to profit and loss account and no expenditure is ITA No.182/PUN/2023 Trimurti Cement Products Pvt. Ltd.,[A] 2 claimed. 2. The ld CIT(A) erred in law and on facts in confirming disallowance of Rs 58,373/- u/s 36(i)(via) in respect of employees contribution to PF/ESIC. 3. The appellant craves leave to add, alter, modify or substitute any ground of appeal at the time of hearing.” Delay in filing of appeal : 2. There is a delay of 270 days in filing of appeal before this Tribunal. Shri Balasaheb T.Pathrikar, Director of assessee filed the affidavit along with the request for condonation of delay. On perusal of the affidavit, we are satisfied that there was sufficient reason for delay. Hence, delay condoned. Brief facts of the case : 3. There is a disallowance under section 43B of Rs.48,02,169/- under section 143(1) of the Act. The assessee pleaded before ld.CIT(A) that assessee has not debited these amounts of Rs.48,02,169/- which is payment of GST and Service Tax. The ld.CIT(A) upheld the addition on the ground that no substantial evidence was filed by assessee, though ld.CIT(A) has admitted that copies of challans have been filed. There is also disallowance under section 36(1)(va) of the Act of Rs.58,373/- on account of delayed payment of Employees Contribution of ESI/PF. The ld.CIT(A) has upheld the said addition. ITA No.182/PUN/2023 Trimurti Cement Products Pvt. Ltd.,[A] 3 Submission of ld.Authorised Representative (ld.AR) : 4. The ld.AR submitted that no proper opportunity was granted by the ld.CIT(A). The ld.AR also submitted that ld.CIT(A) failed to appreciate the evidence filed by the assessee. The ld.AR admitted that there is a delay in payment of Employees Contribution toward ESI/PF and the said issue is decided by the Hon’ble Supreme Court against the assessee in the case of Checkmate. Submission of ld.Departmental Representative(ld.DR) : 5. The ld.DR for the Revenue submitted that the issue of ESI/PF is covered issue in favour of Revenue. Findings &Analysis : 6. We have heard both the parties and perused the records. ESI &PF : 6.1 The issue of delayed payment of employee’s contribution of Provident fund & ESIC has been decided by Hon’ble SC in the case of Checkmate Services (P.) Ltd. Vs. Commissioner of Income- tax-1 vide order dated October 12, 2022 as under : Quote, “ That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees’ contributions- which are deducted from their income. They are not part of the assessee employer’s income, nor are they heads of deduction per se in the form of statutory pay out. They are others’ income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have ITA No.182/PUN/2023 Trimurti Cement Products Pvt. Ltd.,[A] 4 to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, and deemed an income, is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date. ” Unquote. 6.2 Respectfully following the Hon’ble Supreme Court decision, we uphold the addition of Rs.58,373/-. Accordingly, Ground No.2 of the assessee is dismissed. 43B Disallowance : 6.3 On perusal of the ld.CIT(A)’s order, it is observed that clear facts are not emanating from the said order. The ld.CIT(A) has not specifically mentioned which documents were filed by the assessee. From the order under section 143(1), the facts are not clear on the said issue. In these facts and circumstances of the case and taking into consideration, the plea of the ld.AR that ld.CIT(A) had not given proper opportunity, we set-aside the issue to the ld.Assessing Officer(AO) for denovo adjudication. The ld.AO shall provide opportunity to the assessee. Assessee shall file all the details before the AO within the three effective opportunities. Accordingly, Ground No.1 of the assessee is allowed for statistical purpose. 7. Ground No.3 is general in nature, needs no adjudication, hence, dismissed. ITA No.182/PUN/2023 Trimurti Cement Products Pvt. Ltd.,[A] 5 8. In the result, appeal of the assessee is partly allowed for statistical purpose. Order pronounced in the open Court on 20 th April, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 20 th April, 2023/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.