Ashirbad Infrastructure Services & Facilities Management Pvt Ltd, New Delhi V. DCIT CIRCLE-3(2), New Delhi

ITA 1859/DEL/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8816 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2021
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2019-2020
• Appeal Filed On: 15-11-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANGEETA YADAV
• Assessee Lawyers: TILAK TALWAR
• Section: 2; 43B; 143(1); 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC-1’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA No.1859/Del/2020 (Assessment Year : 2019-20) Ashirbad Infrastructure Services and Facilities Management Pvt. Ltd., 1, Upper Ground Floor, Devika Tower 6, Nehru Place, New Delhi-110 019 PAN : AAGCA 2338 A Vs. DCIT Circle – 3(2) New Delhi (APPELLANT) (RESPONDENT) Assessee by Shri Tilak Talwar, Adv. Revenue by Ms. Sangeeta Yadav, Sr. D.R. Date of hearing: 28.10.2021 Date of Pronouncement: 11.11.2021 ORDER PER ANIL CHATURVEDI, AM: This appeal filed by the assessee is directed against the order dated 31.08.2020 of the Commissioner of Income Tax (Appeals)-I, New Delhi relating to Assessment Year 2019-20. 2 2. The relevant facts as culled from the material on records are as under : 3. Assessee electronically filed its return of income for A.Y. 2019-20 on 12.10.2019 declaring total income at Rs.39,14,568/-. The return was processed and intimation order u/s 143(1) of the Act issued on 01.05.2020 to the assessee after reconciliation of data and order passed u/s 143(1) making addition of Rs.29,74,447/-. Aggrieved by the order of AO, assessee carried the matter before the CIT(A) who vide order dated 31.08.2020 in Appeal No.10024/20-21 dismissed the appeal of the assessee. Aggrieved by the order of CIT(A), assessee is now in appeal and has raised the following grounds: On the facts and the circumstances of the case the Learned CIT(A) has erred :- 1. In sustaining the addition of Rs.29,74,447/- representing adjustment u/s 143(1)(a) on the issue which is debatable in nature. 2. In sustaining the above addition which pertained to the late payment of Employee contribution to provident fund and ESI which was paid by the assessee before the due date of filing its income tax return for the relevant assessment year. The appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing.” 4. Before me, Learned AR submitted that addition of Rs.29,74,447/- has been made in the intimation issued by CPC, 3 Bangalore u/s 36(1)(va) of the Act for the reason that the contribution received towards PF/ESIC by the assessee from its employees was not deposited before the due date. He submitted that though there has been delay in deposit of PF/ESIC Contributions but all the contributions received by the assessee from its employees have been deposited with the appropriate authorities before the filing of return of income by the assessee. He therefore submitted that since the amounts have been deposited before the filing of return of income, no disallowance is called for and for aforesaid proposition, he relied on the decision in the case of Azamgarh Steel & Power vs CPC in ITA No.1626/Del/2020 dated 31.05.2021 and CIT vs. AIMIL Ltd. [2010] 188 Taxman 265 (Delhi) and various other decisions. He further submitted that if the issue of addition is decided in assessee’s favour, the ground No.1 raised will be rendered academic. 5. Learned DR on the other hand supported the order of lower authorities and also placed reliance on the decision of Delhi Tribunal in the case of Vedvan Consultants Pvt. Ltd. vs DCIT in ITA No.1312/Del/2020 order dated 26.08.2021. He also submitted that the amendment brought out by Finance Act 2021 would be applicable to the present case as by the amendment it has been clarified that provisions of Section 43B shall not apply and shall be deemed never to have been applied to a sum received 4 by the assessee from any of his employees to which the provisions of sub clause (x) of Clause (24) of Section 2 applies. 6. I have heard the rival submissions and perused the materials available on record. The issue in the present ground is addition made u/s 36(1)(va) of the Act on account of delayed deposit of PF/ESIC contributions. Before me, Learned AR has pointed to the statement of the deposits made during the year and from that table he has pointed out that though there has been delay in deposit of the PF/ESIC Contributions but all the amounts have been deposited with the appropriate authorities before filing of return of income by the assessee. The aforesaid contention of the Learned AR has not been controverted by Learned DR. I find that the various Benches of the Tribunal at Delhi and other Tribunal have held that the delayed deposits of PF & ESIC before the date of filing of return is an allowable expenditure and for which reliance was placed on the decision of Hon’ble Delhi High Court in the case of AIMIL Ltd. (supra). As far as reliance by Learned DR on the amendment brought out by Finance Act 2021 is concerned, “notes on clauses” to the Finance Bill 2021 clearly states that the amendment will take effect from 1 st April 2021 and will apply in relation to the assessment year 2021-22 and subsequent assessment year. In such a situation, I am of the view that the amendment brought out by Finance Act 2021 does not apply to the assessment year under consideration. As far as the reliance of Revenue on the decision of Vedvan 5 Consultants Pvt. Ltd. (supra) is concerned, I find that the various division Benches of the Delhi & other Tribunal have held the delayed deposits of PF/ESIC Contributions to be allowable expenditure if the same are deposited with the appropriate authorities before filing of return of income by the assessee. Further, it is settled law that when two judgments are available giving different views, then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon’ble Supreme Court. I therefore, following the decision rendered by Hon’ble Apex Court in the case of M/s. Vegetable Products Ltd. (supra) and AIMIL Ltd. (supra), am of the view that no disallowance u/s 36(1)(va) of the Act is warranted in the present case. I therefore direct the AO to delete the addition. Thus the assessee’s ground is allowed. Since the ground on merits has been decided in assessee’s favour, the ground No.1 whereby assessee is challenging the adjustment u/s 143(1) of the Act is rendered academic and therefore dismissed. 7. In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on 11.11.2021 Sd/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER Date:- 11.11.2021 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI