Harendra Nath Biswas, Kolkata V. DCIT, Cir. 29, Kolkata

ITA 186/KOL/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0584 (ITAT-KOLKATA)
• Duration Of Justice: 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-07-2021
• Assessment Year: 2019-2020
• Appeal Filed On: 21-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: BISWESWAR GHOSH
• Keywords: Question of law
• Section: 43B; 139(1); 43

Judgement Text

1 ITA NO.186/KOL/2021 HARENDRA NATH BISWAS A.Y. 2019-20 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI P. M .JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A. T. VARKEY, JM] I.T.A. NO. 186/KOL/2021 ASSESSMENT YEAR: 2019-20 HARENDRA NATH BISWAS (PAN: AEJPB 3060 J) VS. DCIT, CIRCLE-29, KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 14.07.2021 DATE OF PRONOUNCEMENT 16.07.2021 FOR THE APPELLANT SHRI BISWESWAR GHOSH, ADVOCATE FOR THE RESPONDENT SMT. RANU BISWAS, ADDL. CIT ORDER PER SHRI A. T. VARKEY, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)- NATIONAL FACELESS APPEAL CENTRE (NFAC), DELHI DATED 29.04.2021 FOR ASSESSMENT YEAR 2019-20 2. THE SOLE GROUNDS OF APPEAL RAISED BY THE ASSES SEE IS AGAINST THE LD. CIT(A) IN CONFIRMING THE ACTION OF AO WHO DISALLOWED/ADDED BACK A SUM OF RS. 1,10,62,263/- ON ACCOUNT OF DELAYED DEPOSIT OF EMPL OYEES CONTRIBUTION TO PF AND ESI U/S 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT) DESPITE THE ASS ESSEE CONTRIBUTING/DEPOSITING THE SAME BEFORE THE DUE DATE OF FILING OF RETURN OF INC OME U/S 139(1) OF THE ACT. 3. BRIEF FACTS OF THE CASE IS THAT THE CPC WHILE P ROCESSING THE RETURN DISALLOWED/ADDED RS. 1,10,62,263/- ON THE GROUND TH AT EMPLOYEES CONTRIBUTION TO EMPLOYEES PROVIDENT FUND (EPF) AND ESI FUND HAS BEE N DEPOSITED BEYOND THE DUE DATE APPLICABLE UNDER THE PROVISION OF ESI ACT, 194 8 AND EPF ACT BY INVOKING THE PROVISION OF SECTION 36(1)(VA) OF THE ACT. AGGRIEVE D BY THIS DISALLOWANCE, THE 2 ITA NO.186/KOL/2021 HARENDRA NATH BISWAS A.Y. 2019-20 ASSESSEE FILED THE APPEAL BEFORE THE NATIONAL FACEL ESS APPEAL CENTRE (NFAC), DELHI WHERE THE LD. CIT(A) HAS TAKEN NOTE OF THE ASSESSE ES SUBMISSION THAT NO DISALLOWANCE WAS WARRANTED IN RESPECT OF DELAYED DE POSIT OF EMPLOYEES CONTRIBUTION TO EPF /ESI FUND SINCE THE ASSESSEE HAS DEPOSITED T HE EMPLOYEES CONTRIBUTION IN RESPECT OF BOTH THESE ACTS (EPF & ESI ACT) BEFORE F ILING THE RETURN OF INCOME AND RELIED ON THE VARIOUS JUDICIAL DECISION INCLUDING THAT OF THE JURISDICTIONAL HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF CIT VS. VIJAY SHREE LTD. IN [2014] 43 TAXMAN.COM 396(CAL). HOWEVER THE LD. CIT(A) DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE IN THIS REGARD AND BY RELYING ON THE EXPLA NATION-5 BELOW SECTION 43B WHICH WAS BROUGHT IN BY FINANCE ACT, 2021 TO DENY THE CLA IM OF ASSESSEE. THEREFORE, THE ASSESSEE IS BEFORE US BY PREFERRING THIS APPEAL. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. FIRST OF ALL WE DO NOT COUNTENANCE THIS ACTION OF THE LD. CIT(A) FOR THE S IMPLE REASON THAT THE EXPLANATION 5 WAS INSERTED BY THE FINANCE ACT, 2021, WITH EFFEC T FROM 01.04.2021 AND RELEVANT ASSESSMENT YEAR BEFORE US IS AY 2019-20. THEREFORE THE LAW LAID DOWN BY THE JURISDICTIONAL HONBLE HIGH COURT WILL APPLY AND SI NCE THIS EXPLANATION-5 HAS NOT BEEN MADE RETROSPECTIVELY. SO WE ARE INCLINED TO FO LLOW THE SAME AND WE REPRODUCE THE ORDER OF HONBLE CALCUTTA HIGH COURT IN THE CAS E OF VIJAYSHREE LTD. SUPRA WHEREIN THE HONBLE CALCUTTA HIGH COURT HAS TAKEN N OTE OF THE HONBLE SUPREME COURT DECISION IN CIT VS. ALOM EXTRUSION LTD. REPOR TED IN 390 ITR 306. THE HONBLE CALCUTTA HIGH COURTS DECISION IN VIJAYSHRE E LTD. SUPRA IS REPRODUCED AS UNDER: THIS APPEAL IS AT THE INSTANCE OF THE REVENUE AND IS DIRECTED AGAINST AN ORDER DATED 28 TH APRIL, 2011 PASSED BY THE INCOME TAX APPELLATE TRIB UNAL, A BENCH, KOLKATA IN ITA NO. 1091/KOL/2010 RELATING TO ASSESSMENT YEAR 2006-07 B Y WHICH THE TRIBUNAL DISMISSED THE APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER O F CIT(A). THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AS TO WHE THER THE DELETION OF THE ADDITION BY THE AO ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO ESI AND PF BY INVOKING THE PROVISION OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE ACT WAS CORRECT OR NOT. IT APPEARS THAT THE TRIBUNAL BELOW, IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LT D., REPORTED IN 2009 VOL.390 ITR 306, HELD THAT THE DELETION WAS JUSTIFIED. 3 ITA NO.186/KOL/2021 HARENDRA NATH BISWAS A.Y. 2019-20 BEING DISSATISFIED, THE REVENUE HAS COME UP WITH TH E PRESENT APPEAL. AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARIN G ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD., WE FIND THAT THE SUPRE ME COURT IN THE AFORESAID CASE HAS HELD THAT THE AMENDMENT TO THE SECOND PROVISO TO THE SEC 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATIVE IN NA TURE AND IS REQUIRED TO BE APPLIED RETROSPECTIVELY WITH EFFECT FROM 1ST APRIL, 1988. SUCH BEING THE POSITION, THE DELETION OF THE AMOUNT PAID BY THE EMPLOYEES CONTRIBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVOKING THE AFOR ESAID AMENDED PROVISIONS OF SECTION 43(B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMISS THIS APPEAL. URGENT XEROX CERTIFIED COPY OF THIS ORDER, IF APPLI ED FOR, BE SUPPLIED TO THE PARTIES SUBJECT TO COMPLIANCE WITH ALL REQUISITE FORMALITIES. IN THE LIGHT OF THE AFORESAID DISCUSSION WE DO NOT ACCEPT THE LD. CIT(A)S STAND DENYING THE CLAIM OF ASSESSEE SINCE ASSESSEE DELAYE D THE EMPLOYEES CONTRIBTION OF EPF & ESI FUND AND AS PER THE BINDING DECISION OF THE HONBLE HIGH COURT IN VIJAYSHREE LTD. (SUPRA) U/S 36(1)(VA) OF THE ACT SI NCE ASSESSEE HAD DEPOSITED THE EMPLOYEES CONTRIBUTION BEFORE FILING OF RETURN OF I NCOME. THEREFORE, THE ASSESSEE SUCCEEDS AND WE ALLOW THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16 TH JULY, 2021 SD/- SD/- (P. M. JAGTAP) (A. T. VARKEY) VICE-PRESIDENT JUDICIAL MEMBER DATED: 16.07.2021 SB, SR. PS 4 ITA NO.186/KOL/2021 HARENDRA NATH BISWAS A.Y. 2019-20 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- HARENDRA NATH BISWAS, 6A, RAJANI BHATTAC HARJEE LANE, KALIGHAT, KOLKATA-700026. 2. RESPONDENT DCIT, CIRCLE-29, KOLKATA 3. THE CIT(A)- NATIONAL FACELESS APPEAL CENTRE (NFAC ), DELHI 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY/DDO ITAT, KOLKATA BENCHES, KOLKATA