Shreeomsingh B.Rawat, Baroda V. The Income tax Officer,Ward-2(5), Baroda

ITA 1908/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9019 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 09-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: TUSHAR H HEMANI
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI R.V.EASWAR, VICE-PRESIDENT AND A.N. PAHUJA, ACCOUNTANT MEMBER) ITA NO.1908/AHD/2009 [ASSTT.YEAR : 2005-2006] SHREEOMSINGH B. RAWAT PROP. STAR SECURITY SERVICES 905-6, GIDC ESTATE, MARKARPURA BARODA. VS. ITO, WARD-2(5) BARODA. ASSESSEE BY : SHRI TUSHAR H. HEMANI REVENUE BY : SHRI C.K.MISHRA O R D E R PER R.V.EASWAR, VICE-PRESIDENT : THIS APPEAL BY THE ASSESSEE RELATES TO THE AY 2005-06 AND IS DIRECTED AGAINST T HE ORDER OF THE CIT(A) BY WHICH HE SUSTAINED THE DISALLOWANCE OF RS.2,72,501 MADE U/S.43B OF THE IT ACT. 2. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING O FFICER NOTED FROM THE TAX AUDIT REPORT THAT THE ASSESSEE HAS DEPOSITED TH E EMPLOYEES CONTRIBUTION OF RS.2,72,501 TO THE PROVIDENT FUND AFTER THE DUE DAT E AS PRESCRIBED IN SEC.36(1)(VA). HE ACCORDINGLY DISALLOWED THE SAME. THE RELEVANT DATES ARE GIVEN IN PARAGRAPH 5.1 OF THE ASSESSMENT ORDER AND NOT REPRODUCED HERE FOR THE SAKE OF BREVITY. THE DISALLOWANCE WAS CONFIRMED BY THE CIT(A) AND HENCE THE PRESENT APPEAL. 3. AT THE TIME OF THE HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE AN ORDER PASSED ON 2-3-2009 BY THE AH MEDABAD BENCH D OF THE TRIBUNAL IN THE CASE OF GUJARAT CONTAINERS LTD V AC IT IN ITA NO.2609/AHD/2008 (COPY FILED) IN WHICH IT WAS HELD, AFTER CONSIDERING THE RELEVANT AUTHORITIES AND THE STATUTORY PROVISIONS I NCLUDING THE EMPLOYEES PROVIDENT FUND SCHEME, AS FOLLOWS IN PARAGRAPH 6 OF THE ORDER: PAGE - 2 ITA NO.1908/AHD/2009 -2- 6. IN VIEW OF THE FOREGOING AND ESPECIALLY WHEN IT HA SNOT BEEN DISPUTED BY THE REVENUE BEFORE US THAT THE AFORESAI D CONTRIBUTIONS TOWARDS PF AND ESI HAVE BEEN PAID BEFORE THE DUE DA TE OF FILING OF RETURN U/S.139(1) OF THE ACT IN THE LIGHT OF VIEW T AKEN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PM EL3CTRONICS, 220 CTR (DEL) 635 AND THE DECISION OF HONBLE APEX COURT IN THE CASE OF VINAY CEMENT LTD. (SUPRA), WE HAVE NO HESIT ATION IN HOLDING THAT THE EMPLOYEES CONTRIBUTION TOWARDS PF HAVING BEEN MADE BY THE ASSESSEE WITHIN THE DUE DATE OF FILING OF THE RETURN FOR THE YEAR UNDER CONSIDERATION, THERE IS NOT GROUND F OR DISALLOWING THE SAME. THUS, GROUND NO2. RAISED IN THE APPEAL I S ALLOWED. IN THE PRESENT CASE, THERE IS NO DISPUTE THAT THE A MOUNTS DEDUCTED FROM THE SALARY OF THE EMPLOYEES HAVE BEEN DEPOSITED WITH TH E GOVERNMENT BEFORE THE DATE ON WHICH THE RETURN U/S.139(1) IS DUE, WHICH I S 30-10-2005 IN THE PRESENT CASE. THE TABLE GIVEN IN PARA.5 OF THE ASSESSMENT O RDER CONFIRMS THIS POSITION. THEREFORE THERE IS NO NEED TO SEND BACK THE MATTER TO THE ASSESSING OFFICER FOR VERIFICATION OF THE DATES OF DEPOSIT. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE AFORESAID ORDER OF THE TRIBUNAL (SUPRA), WHI CH IS OF A CO-ORDINATE BENCH, WE DELETE THE DISALLOWANCE OF RS.2,72,501 MADE U/S. 43B AND ALLOW THE APPEAL OF THE ASSESSEE WITH NO ORDER AS TO COSTS. ORDER PRONOUNCED IN THE OPEN COURT 18 TH SEPTEMBER, 2009. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (R.V.EASWAR) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 18-09-2009 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD