Sanket Food Products Private Ltd, Aurangabad V. Income-tax Officer, Ward - 1(3), Jalna

ITA 1955/PUN/2017

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0616 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 16-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH JASANI
• Keywords: Unexplained investment; Search and seizure
• Section: 43B; 143(3); 143(1); 250; 143(2); 43; 145(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE (Through Virtual Court) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI RAVISH SOOD, JM ITA No. 1955/PUN/2017 Assessment Year :2011-12 Sanket Food Products Pvt. Ltd., Flat No. 101 Bhoomi Apartment, 1 st Floor, NutanLaxmi CHS Plot No. 9, JVPD Scheme, Ville Parle (W), N.S. Road, No.8, Mumbai – 400 056. Appellant PAN No AAECS0131P V/s. The Income Tax Officer, Ward –1(3), Jalna ......Respondent Appellant by : None Respondent by : Shri Mahesh Jasani, D.R Date of Hearing : 03-01-2022 Date of Pronouncement : 05-01-2022 ORDER PER RAVISH SOOD, JM The present appeal filed by the assesse is directed against the order passed by the learned CIT (A)-I, Aurangabad, dated 24- 10-2016, which in turn arises from the order passed by the Assessing Officer u/s 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”), dated 30-3-2014 for A.Y. 2011-12. The assesse has assailed the impugned order on the following solitary ground before us: “1. The learned CIT (A) has erred in making an addition of Rs.3,44,85,310 on account of alleged suppressed production.” Apart from that the assessee has sought for admission of the following additional ground of appeal : SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 2 “On the facts and circumstances of the case, A.O erred in making addition of Rs. 9,18,996/- being employee‟s‟ contribution to Provident Fund u/s 2(24)x) r.w.s. of the I.T. Act, 1961 and the CIT(A) confirmed the addition ignoring judicial pronouncement‟s including jurisdictional High Court decision and the same may be held as bad in law and quashed.” 2. Briefly stated, the assessee company which is engaged in the business of manufacturing of pan masala containing tobacco (chewing tobacco) and also trading in tobacco had as on 04.04.2012 filed its belated return of income for A.Y. 2011-12, declaring a loss of (Rs. 3,02,72,830/-). The return of income filed by the assesse company was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act. 3. During the course of assessment proceedings the A.O called upon the assessee to furnish its day-to-day item wise details of purchases, consumption, finished goods and shortage in terms of quantity and value including point wise consumption. Although the assessee furnished the annual consumption and production details, comparative statement of its actual production vis-à-vis manufacturing as per its licensed installed capacity a/w the copies of the excise related documents, copies of excise return, consumption of raw material etc., but expressed its inability to furnish the specific details that were called for by the A.O, viz. details of purchases, consumption, finished goods and shortage in terms of quantity and value including point wise consumption. Further, on a perusal of the orders of the excise authorities, it was observed by the A.O, that the assessee had during the year on the basis of the excise duty that was fixed per machine paid a substantial amount of excise duty. Backed by the aforesaid fact, the A.O was of the view that it was beyond SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 3 comprehension that the assessee in the absence of commensurate production would have by any stretch of prudence continued paying substantial amount of excise duty. Also, the A.O taking cognizance of the ledger accounts of the various purchases of packing material that was filed by the assessee with him, observed, that the same revealed lopsided purchases of packing stock, viz. aluminium file, inner boxes, lamination purchases etc. which were either wholly or primarily made at the fag end of the year i.e in the month of March, 2011. Also, the story qua the purchases of betel nut i.e a principal raw material used in manufacturing of pan masala was found to be no different, as out of the total purchases of Rs. 1.38 crore (approx.) made during the year the assessee had claimed to have purchased betel nut of Rs. 52.08 lacs in the month of March, 2011. It was further observed by the A.O that the assessee company as against its sales of gutkha of Rs. 2,26,24,500/- had shown purchases of raw material of Rs. 2,36,42,101/-; utilization of packing material of Rs. 72,01,834/-; and excise duty paid of Rs. 4,85,36,195, and on the said basis raised a claim of a net loss of (Rs. 3,02,06,545/-). In the backdrop of the aforesaid facts, the A.O not being inspired by the book results of the assessee company, therein, called upon it to explain that as to why its production may not be estimated on the basis of its installed licensed capacity for manufacturing of goods. As the assessee failed to come forth with any explanation to dissuade the A.O from taking recourse to the aforesaid proposed course of action for estimating its production, therefore, the A.O, on the basis of the material available on record proceeded with and after rejecting the books of accounts of the assessee company u/s 145(3) of the Act, therein, going by the installed capacity of SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 4 the machines at the assessee‟s premises worked out its suppressed production at 3,44,85,310 gutkha pouches, as under: Sr. No. Month Excise duty Determine No.of Machine s Installed capacity Actual production Difference 1. 16-10-2000 3562000 4+1 9360000 7043190 2316810 2. Nov. 2010 6900000 4+1 18720000 17209200 1510800 3. Dec.2010 6900000 4+1 18720000 14897340 3822660 4. Jan. 2011 6900000 4+1 18720000 15543030 3176970 5. Feb. 2011 2500000 2 7488000 404430 7083570 6. Mar. 2011 17650000 15 56160000 47697500 16574500 7. 17.03. 2011 6250000 5 8112000 Total 81762000 137280000 102794690 34485310 Quantifying the value of the suppressed production, the A.O taking the value @ Rs. 1/- per pouch determined the same at an amount of Rs. 3,44,85,310/-. Apart from that, the A.O taking cognizance of the fact that the assessee had delayed the deposit of employees provident fund contributions of Rs. 9,18,996/- i.e had deposited the said amount beyond the prescribed time period contemplated under the Provident Fund Act, therein triggered the provisions of Sec. 2(24)(x) r.w Sec. 36(1)(va) of the Act and disallowed the aforesaid amount of Rs. 9,18,996/. Accordingly, the A.O vide his order passed u/s 143(3), dated 30-3-2014 after making the aforesaid additions/disallowances assessed the income of the assessee company at Rs. 51,31,476/-. 4. Aggrieved, the assesse carried the matter in appeal before the CIT(A), who after deliberating at length on the addition of Rs. 3,44,85,310/- that was made by the A.O towards suppressed production of gutkha by the assessee company, upheld the view taken by the A.O. SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 5 After deliberating at length on the issue in hand, it was observed by the CIT(A) that the assessee company had not only carried out suppressed production, but was of the view that from a perusal of the lopsided purchases of raw material and packing items which were not commensurate with its production, it could safely be concluded that the assessee was also into unaccounted purchases for facilitating its suppressed production. At this stage, we may herein observe, that the CIT(A) in the course of the appellate proceedings had carried out certain independent verifications, which, inter alia, included verifications from the Sales tax department as regards a „sister concern‟ of the assessee company, viz. M/s Sanket Industries Ltd., to whom the assessee company, more or less as a captive supplier was selling its entire manufactured goods. On the basis of the aforesaid enquiries made with the Sales tax department, it was gathered by the CIT(A) that M/s Sanket Industries Ltd. (supra) had made unaccounted sales of Rs. 12,67,70,182 in A.Y 2010-11 and of Rs. 93,34,800/- in A.Y 2011-12 i.e the year under consideration. Backed by the aforesaid information, the CIT(A) taking cognizance of the fact that the assessee as a captive supplier was working on a job work basis and selling the entire material manufactured by it to its aforesaid sister concern, viz. M/s Sanket Industries Ltd (supra), ,held a conviction that the assessee company had facilitated the unaccounted sales of its „sister concern‟, viz. M/s Sanket Industries Ltd. (supra) not only for the year under consideration but also for the immediately preceding year i.e A.Y 2010-11. In the backdrop of his aforesaid observations, the CIT(A) not only confirmed the addition of the suppressed production of Rs. 3,44,85,310/- that was made by the A.O SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 6 while framing the assessment for the year under consideration i.e A.Y 2011-12, but also directed the A.O to take appropriate remedial action in the hands of the assessee qua the corresponding unexplained investment that would have been made by it towards purchase of raw materials for facilitating its unaccounted production in the said year, which as per the information gathered by him from the Sales Tax Department, he was of the view would had been channelized to facilitate the unaccounted sales of Rs. 12,67,70,182/- of M/s Sanket Industries Ltd. (supra). As regards the disallowance of the employee‟s contributions towards Provident Fund that was deposited by the assessee company beyond the specified due date as contemplated in the Provident Fund Act, the CIT(A) concurred with the view taken by the A.O that the delay in deposit of the said amount would trigger the disallowance of the same u/s 2(24)(x) r.w.s 36(1)(va) of the Act. Backed by his aforesaid observations the CIT(A) upheld the additions/ disallowances made by the A.O a/w further directions for taking appropriate remedial action in the hands of the assessee in the immediately preceding year i.e A.Y 2010-11 and dismissed the appeal. 5. The assesse, being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. As the assesse despite having been put to notice on various occasions about the hearing of the appeal has chosen not to comply with the same and put up any appearance before us, therefore, we are constrained to dispose off the appeal as per Rule 24 of the Appellate Tribunal Rules, 1963 i.e after perusing the orders of the lower authorities and hearing the respondent revenue. SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 7 6. On a perusal of the records, we find that the appeal filed by the assessee involves a delay of 237 days. As per the „affidavit‟ filed by Shri. Vinay Shah, director of the assessee company, the aforesaid delay had occasioned, for the reason, that as the assessee company ad discontinued its business since March, 2010 and had released all its employees from their respective employment, therefore, the order of the CIT(A) that was received by one of the ex-employee of the assessee company was dropped in by him at the office without intimating the deponent. It is deposed by Shri. Vinay Shah (supra), that it was only when the annual maintenance of the office premises of the assessee company were carried out that the aforesaid order of the CIT(A) was therein located. It is further stated by the deponent that on learning about the order of the CIT(A), the assessee involving no further loss of time had filed the appeal with the Tribunal. On being confronted with the aforesaid facts as had been canvassed by the assessee company by filing the present affidavit before us, the ld. D.R objected to the condonation of delay as was therein sought on the said basis. 7. We have given a thoughtful consideration to the reasons leading to the delay of 237 days in filing of the present appeal by the assessee company before us. Although an appellant is expected to be extra vigilant as regards the status of its appeal, however, considering the peculiar facts involved in the case before us, wherein Shri. Vinay Shah, director of the assessee company had claimed on the basis of an „affidavit‟ that the order passed by the CIT(A) was served upon his ex-employee who after the discontinuance of the business of the assessee company had SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 8 dropped the same at its office premises without intimating the assessee about the same, and had only subsequent thereto came to his notice when the annual maintenance of the premises was being carried out, in our considered view justifies the delay involved in filing of the present appeal by the assessee company. We, thus, condone the delay of 237 days involved in filing of the present appeal by the assessee appellant before us. 8. Before us the learned D.R. Shri Mahesh Jasani had relied on the orders of the lower authorities. It was submitted by the learned D.R that though the assessee was given sufficient opportunity by both the lower authorities to dispel the adverse inferences that were sought to be drawn on the basis of the material that was gathered in the course of the respective proceedings, which irrefutably evidenced suppressed production and unexplained investment towards purchases of raw material etc. by the assessee, however, the assessee company had failed to place on record any material which would have proved to the contrary. Backed by his aforesaid contention, it was submitted by the ld. D.R that the CIT(A) had proved to the hilt the suppressed production of the assessee that was channelized into the unaccounted sales of its „sister concern‟, viz. M/s Sanket Industries Ltd. Backed by his aforesaid contention, it was submitted by the ld. D.R that no infirmity did emerge from the orders of the lower authorities who had rightly determined the suppressed production of the assessee company at Rs. 3.44 crores (supra). Insofar the disallowance of the delayed deposit of the employee‟s contributions towards provident fund was concerned, it was submitted by SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 9 the learned D.R that as the said amounts were admittedly paid by the assessee beyond the specified “due date” under the P.F. Act, therefore, the same had rightly been disallowed by the A.O u/s 2(24)(x) r.w sec. 36(1)(va) of the Act. In the backdrop of his aforesaid contentions, it was submitted by the learned D.R that as the appeal of the assessee was devoid and bereft of any merit, therefore, the same was liable to be dismissed. 9. We have heard the learned D.R., perused the orders of the lower authorities and also the material available on record. Admittedly, it is a matter of fact borne out from the record that the assesse, in the course of assessment proceedings had failed to comply with the specific directions of the A.O on one pretext or the other, and had neither produced its books of accounts nor the purchase bills for necessary verification by the A.O. Also, the mode of payment qua the purchases made by the assessee had remained unexplained and the delivery challans evidencing the purchase transactions were never produced before the A.O. On a perusal of the record, we find that though the A.O had called upon the assessee to furnish its day-to-day item wise details of purchases, consumption, finished goods and shortage in terms of quantity and value including point wise consumption, however, the assessee in compliance thereto had though furnished the annual consumption and production details, comparative statement of its actual production vis-à-vis manufacturing as per its licensed installed capacity a/w the copies of the excise related documents, copies of excise return, consumption of raw material product wise etc., but had expressed its inability to furnish the specific details that SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 10 were called for by the A.O, viz. details of purchases, consumption, finished goods and shortage in term of quantity and value including point wise consumption. As is discernible from the records, a perusal of the orders of the excise authorities reveals that though the assessee as per the mandate of Sec. 3A of the Central Excise Act, 1944 r.w Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, had during the year paid a substantial amount of excise duty that was fixed per machine, but against that it had reflected substantially low production in its books of accounts. Backed by the aforesaid fact, we find substance in the view arrived at by the lower authorities that it was beyond comprehension that the assessee in the absence of commensurate production would have by any stretch of prudence continued paying substantial amount of excise duty. In fact, the ledger accounts of the various purchases of packing material and raw material that were filed by the assessee in the course of the assessment proceedings in itself raises serious doubts as regards its book results. Observations of the CIT(A) as regards the aforesaid serious infirmities qua the purchase of raw material and packing items, either of which was not found to be commensurate to the production of pan masala and pouches by the assessee company during the year, are for the sake of clarity culled out as under : “i.) Aluminium File: Total purchase of Rs.15,29,036/- were made during the year. The assessee company has started manufacturing of Gutkha in October, 2010 whereas the entire Aluminium file was purchased after 26.02.2011. It was not understood as to how the assessee company had packed Gutkha/Pan Masala during the period 16.10.2010 to 26.02.2011. It was also noticed that the assessee company did not have any opening stock of Aluminium file since the manufacturing activities was started from 26.02.2011. SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 11 ii.) Betal nut: Total purchase of Rs.l,38,44,209/- were made during the year. It was clear that the assessee company had not made purchases of raw material i.e. Betal nut on regular basis to compensate production made by it. Major purchases i.e. Betal nut were shown in March, 2011. iii.) Boxes: Total purchase of Rs.6,41,211/- were made during the year. It was noticed that entire boxes were purchased on 31.03.20011. Thus, how packing of earlier goods had taken place, was a mystery. iv) Inner Boxes: Total purchase of Rs.9,85,573/- were made during the year. It was noticed that entire boxes were purchased on 31.03.2011. Thus, how packing of earlier goods had taken place, was a mystery. v.) Lamination purchases: Total purchase of Rs.1,73,55,574/-, were made during the year. It was noticed that Lamination material of Rs.55,68,630/- was purchased between 16.10.2010 to 28.02.2011. The balance material of Rs.l,17,86,944/- was purchased in March, 2011. The purchases were not regularly made to suffice the production.” As noticed by us hereinabove, though the assessee was afforded sufficient opportunity by the A.O to dispel the serious infirmities which were glaring on the very face of the details that were filed by it, and in fact evidenced suppressed sales on its part, we find that the assessee had failed to come forth with any explanation. Not only that, we find that the CIT(A) on the basis of the information that was gathered by him from the Sales Tax Department i.e information as regards the unaccounted sales of M/s Sanket Industries Ltd. (supra), a „sister concern‟ of the assessee company to whom the latter as a captive seller was selling its entire manufactured goods, had called upon the assessee vide his letter issued u/s 250 of the Act, dated 19.09.2016 to explain as to why on the basis of the aforesaid information its suppressed production may not be estimated, but the assessee failed to come forth with any explanation even in the course of the appellate proceedings. On a perusal of the facts emerging from the orders of the lower authorities, viz. that the assessee had failed to furnish the requisite details as were called for by the A.O; had failed to produce its books of accounts as well as the purchase bills, SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 12 delivery challans etc. in the course of the assessment proceedings; the purchases of raw material and packing material was in no way commensurate to the production of pan masala and gutkha by the assessee company; the purchases of the raw material and packing items was lopsided and majority of the purchases of both the items were carried out at the fag end of the year i.e in the month of March, 2011; that though the assessee had paid fixed excise duty in respect of all the machines yet there was production much below the installed capacity of machines etc., were some of the manifold factors that did not inspire any confidence as regards the veracity of the book results of the assessee with the A.O, , for which reason he had rejected the books of accounts of the assessee company u/s 145(3) of the Act. In our considered view, the A.O in the totality of the facts of the case was fully justified in rejecting the books of accounts of the assessee company u/s 145(3) of the Act. We, thus, finding no infirmity in the rejection of the assessee‟s books of accounts by the A.O u/s 145(3) of the Act, uphold the same. 10. We shall now advert to the sustainability of the estimation of the suppressed production of the assessee company and the consequential addition that was made by the A.O after rejection of the books of accounts of the assessee company u/s 145(3) of the Act. As is discernible from the records, the assessee company which was into manufacturing of pan masala and gutkha (pan masala containing tobacco) was as per Sec. 3A of the Central Excise Act, 1944 (1 of 1944) subjected to a compounded levy scheme, as per which the excise duty was being charged w.r.t the production capacity of the machines installed and the retail sale price of SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 13 the product. Admittedly, as observed at length by the lower authorities, specifically by the CIT(A), there were serious infirmities in the book results of the assessee which glaringly on the very face of it militated against the production of goods that was disclosed by the assessee in its books of accounts. As the book results of the assessee company did not inspire any confidence, therefore, the A.O was constrained to reject its books of accounts u/s 145(3) of the Act and estimate its production. In fact, the information gathered by the CIT(A) from the Sales Tax Department as regards the unaccounted sales of M/s Sanket Industries Ltd.(supra), i.e a sister concern of the assessee company to whom the assessee company as a captive supplier was on a job work basis supplying its entire manufactured goods, therein further fortified the fact that part of the suppressed production of the assessee was being routed out as unaccounted sales of the aforesaid „sister concern‟, viz. M/s Sanket Industries Ltd. (supra). At this stage, we may herein observe, that the assessee despite specific opportunities had neither in the course of the assessment proceedings came forth with any explanation as to why its disclosed production may not be dislodged and substituted by an estimate, nor in the course of the proceedings before the CIT(A) on being confronted with the unaccounted sales of M/s Sanket Industries Ltd. (supra) had put forth any such explanation that as to why no adverse inferences qua its disclosed production may not be drawn. Be that as it may, as observed by us hereinabove, we are in agreement with the view taken by the lower authorities that as the disclosed production of the assessee company suffered from serious infirmities, therefore, the lower authorities had rightly taken recourse to estimation of the same. As the SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 14 assessee company was being subjected to levy of excise duty on the basis of the production capacity of its machines, therefore, the lower authorities in our considered view had rightly adopted the production as per the installed capacity of the machines that was taken as a basis by the Central Excise Authorities, as a yardstick for computing the shortfall/suppressed production of the assessee company. At this stage, we may herein observe, that the lower authorities had rightly observed that it was beyond comprehension that the assessee would have continued paying substantial amount of excise duty, despite the fact that it did not have commensurate production. We, thus, are of the considered view that the lower authorities had rightly worked out the suppressed production of the assessee company at 3,44,85,310 pouches by adopting the deemed production on the basis of which excise duty was charged on it. In fact, as observed by us hereinabove, in case the assessee had any reason with him as to why the suppressed production was not to be determined on the aforesaid basis, as was specifically brought to his notice by the A.O, then, it was open for him to have come forth with an explanation as regards the same, which we are afraid he had not done. On the basis of the aforesaid facts, we are of a strong conviction that the CIT(A) had rightly upheld the suppressed production as had been determined by the A.O. We, thus, in the backdrop of our aforesaid deliberations uphold the order of the CIT(A) who in our considered view had rightly had confirmed the addition of Rs. 3,44,85,310/- i.e 3,44,85,310 pouches @ Re.1/- per pouch as made by the A.O towards suppressed production of pan masala (containing tobacco). The Ground of appeal No. 1 raised by the assessee is dismissed. SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 15 11. We shall now take up the claim of the assessee that the A.O had erred in making an addition of Rs.9,18,996/- towards delayed deposit by the assessee company of the employee‟s‟ contribution to the provident fund u/s 2(24)(x) r.w.s. 36(1)(va) of the Act. As observed by us hereinabove, the assessee had delayed the deposit of employees contribution of Provident Fund of Rs. 9,18,996/- i.e had deposited the same beyond the time period stipulated under the Provident Fund Act. It is the claim of the assessee that as the aforesaid amount was deposited before the „due date‟ of filing of its return of income as provided in Sec. 139(1) of the Act, therefore, the disallowance of the said amount was saved by the provisions of Sec. 43B of the Act. After having given a thoughtful consideration to the aforesaid issue, we are of the considered view that the issue as to whether or not the employees contribution to welfare funds would fall within the scope and domain of Sec. 43B of the Act, is covered by the judgment of the Hon‟ble High Court of Bombay in the case of CIT Vs. Hindustan Organic Chemicals Ltd in ITA No. 399/12, dated 11.07.2014. In the said case, the Hon‟ble High Court of Bombay was, inter alia, called upon to answer the following substantial question of law that was raised in the appeal filed by the revenue :- “(A). Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal, in law, was right in allowing the claim of the Assessee on account of delayed payments of P.F. of employees' contribution amounting to Rs.1,82,77,138/- by relying on the decision of the Hon'ble Supreme Court in the case of CIT vs. Alom Extrusion Ltd. (319 ITR 306) ?” After referring to the amendments that were made available to section 43B of the Act, the Hon‟ble High Court had answered the aforesaid question in the affirmative and upholding the order of the tribunal qua the aforesaid aspect dismissed the appeal filed by the revenue. Also, we find SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 16 that a similar view had been arrived at by various other Hon‟ble High Courts, as under:- a. CIT Vs. Amil Ltd reported (2010) 321 ITR 508 (Delhi High Court) b. CIT Vs. Hemla Embroidery Mills (P) Ltd. (2014) 366 ITR 167 (P&H) c. Bihar State Warehousing Corporation Ltd.Vs. CIT 386 ITR 410 (Patna) d. Sagun Foundary Pvt. Ltd Vs. CIT 145 DTR 265 (All) e. CIT Vs. Mark Auto Industries (2008) 358 ITR 43 (P&H) f. CIt Vs. Jaipur Vidyut Vitran Nigam Ltd (2014) 363 ITR 307 (Raj) g. Essae Teraoka Pvt. Ltd Vs. DCIT (2014)366 ITR 408 (Kar) h. CIT Vs. Vijay Shree Ltd (2014) 43 Taxmann.com 396 (Cal) i. CIT Vs. Kichha Sugar Co Ltd (2013) 356 ITR 351 (Uttarakhand) In the backdrop of the aforesaid settled position of law, we are of the considered view that no distinction is to be drawn between the employers as well as employees contribution to PF and ESI as both are covered u/s 43B of the Act. We, thus, in terms of our aforesaid observations vacate the disallowance of Rs. 9,18,996/- made by the A.O qua the delayed deposit of the employees contributions towards Provident Fund by the assessee company. The “additional ground of appeal” raised by the assessee is allowed in terms of our aforesaid observations. 12. Resultantly, the appeal filed by the assessee is partly allowed in terms of our aforesaid observations. Order pronounced in the open court on 05-/01/2022. Sd/- sd/- (INTURI RAMA RAO) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER Pune; Dated :05 th January 2022 Ankam SAnket Food Products Pvt. Ltd. Vs. ITO, Ward – 1(3), Jalna ITA No. 1955/Pun/2017 – A.Y 2011-12 17 Copy of the Order forwarded to : 1. M/s Sanket Food Products Pvt. Ltd. Mumbai. 2. The I.T.O. Ward 1(3) Jalna. 3. The CIT(A) – I, Aurangabad 4. The Pr. CIT –I Aurangabad 5. Addl./Jt. CIT Jalna Range, Jalna 6.. DR, ITAT, “B” Bench, Pune. 7. Guard File. BY ORDER, Senior Private Secretary , Date of dictation 03-01-2022 Date on which the typed draft is placed before the dictating member 04-01-2022 Date on which the typed draft is placed before the other member Date on which the approved draft comes to the Sr. PS/ PS Date on which the fair order is placed before the dictating member for pronouncement Date on which the fair order comes back to the Sr. PS/ PS Date on which the final order is uploaded on the website of ITAT date on which the file goes to the Bench Clerk 10-01-2022 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the order