Dilip Pathak, Guwahati V. Assistant Commissioner of Income Tax, Circle-2, Guwahati

ITA 2/GTY/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9565 (ITAT-GUWAHATI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2018-2019
• Appeal Filed On: 24-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Set aside
• Section: 43B; 250; 139(1); 43

Judgement Text

1 ITA No. 02/GTY/2022 Dilip Pathak AY 2018-19 IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH, (VIRTUAL HEARING AT KOLKATA) [BEFORE SHRI MANISH BORAD, ACCOUNTANT MEMBER & SHRI SANJAY SARMA, JUDICIAL MEMBER] I.T.A. No. 02/GTY/2022 Assessment Year: 2018-19 Dilip Pathak C/o. S.N. Ghosh & Associates, Advocates, 2, Garstin Place, 2 nd Floor, Suite No. 203, Hare Street, Kolkata – 700 001. (PAN: AMFPP 6694 J) Vs. ACIT, Circle-2, Guwahati. Appellant Respondent Date of Hearing 05.07.2022 Date of Pronouncement 07.07.2022 For the Appellant Shri Somnath Ghosh, Advocate For the Respondent Shri N.T. Sherpa, JCIT ORDER PER SONJOY SARMA, JM: The present appeal has been preferred by the assessee against the order dated 15.05.2021 of the National Faceless Appeal Centre [hereinafter referred to as ‘CIT’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). The assessee in this appeal has taken the following grounds of appeal: 1. FOR THAT on a proper interpretation of the scope and ambit of the provisions of s. 43B of the Income Tax Act, 1961, the Ld. Commissioner of Income Tax (Appeals)- NFAC erred in upholding the action of the Ld. Assistant Commissioner of Income Tax, C.P.C. in resorting to the impugned disallowance of Rs. 48,20,810/- in the instant case and the purported finding on that behalf is absolutely arbitrary, unreasonable and perverse. 2. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-NFAC acted unlawfully in upholding the impugned disallowance in the sum of Rs.48.20,810/- made by the Ld. 2 ITA No. 02/GTY/2022 Dilip Pathak AY 2018-19 Assistant Commissioner of Income Tax, CP.C. by invoking the mischief of s.36(1)(va) of the Act and such specious findings reached on that behalf is wholly illegal, illegitimate and infirm in law. 3. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-NFAC was absolutely in error in upholding the disallowance in the sum of Rs. 48,20,810/- made u/s. 2(24)(x) read with s.36(1){va) of the Income Tax Act. 1961 by the Ld. Assistant Commissioner of Income Tax, C.P.C. relying upon the amendment by Finance Act, 2021 misconstruing it retrospectively and the purported findings on that behalf is altogether unfounded, unjustified and untenable in law. 4. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-NFAC considered improper facts, failed to consider proper position in law and came to an erroneous findings thereupon in upholding the impugned disallowance of Rs.48,20,810/- made by the Ld. Assistant Commissioner of Income Tax, C.P.C. by erroneous invocation of the provision of u/s. 2(24)(x) read with s.36(1)(va) of the Income Tax Act, 1961 which is wholly opposed to law. 2. At the time of hearing, ld. AR has submitted that the core issue in this appeal is disallowance of sum of Rs. 48,20,810/- being contribution of employees’ share towards ESI and PF set up for the welfare of the employee u/s 36(1)(va) read with section 2(24)(x) of the Income Tax Act, 1961 when the payments were made within the due dates of filing of return u/s 139 of the Income Tax Act, 1961. The ld. AR submitted that the above payments were made within the due dates of filing of return as prescribed u/s 139 of the IT Act, 1961. On the other hand, the ld. DR relied on the decision of ld. CIT(A). 3. We after hearing the rival submission and the material available on record it is find that there was a delay in depositing employee’s as well as employer’s contribution to the Employee’s Provident Fund/ESI fund. However, the amount was deposited before the due date of the filing of the return. The instant issue is squarely covered by the decision of the Hon’ble Jurisdictional Calcutta High Court in the case of CIT, Kolkata vs. M/s Vijay Shree Limited 43 taxman.com 396(Cal) which has been further followed by the Coordinate Calcutta Bench of this Tribunal in the case of Harendra Nath Biswas vs. DCIT in ITA No.186/Kol/2021 by the order dated 16.07.2021. The ld. DR fairly submitted there is no contrary to the case law cited above. 3 ITA No. 02/GTY/2022 Dilip Pathak AY 2018-19 4. We find that the issue is covered in favour of the assessee as the assessment year involved is AY 2018-19 and the Explanation-5 inserted by Finance Act, 2021 to section 43B w.e.f. 01.04.2021 is not applicable to the assessment year under consideration. The relevant portion of the Coordinate Bench decision of the Tribunal in the case of Harendra Nath Biswas vs. DCIT (supra) for the sake of reference is reproduced as under: “2. The sole grounds of appeal raised by the assessee 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 employees 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 assessee contributing/depositing the same before the due date of filing of return of income u/s 139(1) of the Act. 3. Brief facts of the case is that the CPC while processing the return disallowed/added Rs. 1,10,62,263/- on the ground that employees contribution to employees provident fund (EPF) and ESI fund has been deposited beyond the due date applicable under the provision of ESI Act, 1948 and EPF Act by invoking the provision of Section 36(1)(va) of the Act. Aggrieved by this disallowance, the assessee filed the appeal before the national Faceless Appeal Centre (NFAC), Delhi where the Ld. CIT(A) has taken note of the assessee’s submission that no disallowance was warranted in respect of delayed deposit of employees contribution to EPF /ESI fund since the assessee has deposited the employees contribution in respect of both these Acts (EPF & ESI Act) before filing the return of income and relied on the various judicial decision including that of the jurisdictional Hon’ble High Court of Calcutta in the case of CIT vs. Vijayshree 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 Explanation-5 below section 43B which was brought in by Finance Act, 2021 to deny the claim of assessee. Therefore, the assessee is before us by preferring this appeal. 4. We have heard both the parties and perused the record. First of all we do not countenance this action of the Ld. CIT(A) for the simple reason that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon’ble High Court will apply and since this Explanation-5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon’ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon’ble Calcutta High Court has taken note of the Hon’ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon’ble Calcutta High Court’s decision in Vijayshree 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 Tribunal, “A” Bench, 4 ITA No. 02/GTY/2022 Dilip Pathak AY 2018-19 Kolkata in ITA No. 1091/Kol/2010 relating to assessment year 2006-07 by which the Tribunal dismissed the appeal preferred by the Revenue against the order of CIT(A). The only issue involved in this appeal is as to whether 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 Ltd., reported in 2009 Vol.390 ITR 306, held that the deletion was justified. Being dissatisfied, the Revenue has come up with the present appeal. After hearing Mr. Sinha, learned advocate, appearing 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 Supreme 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 nature 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 aforesaid 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 applied 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 delayed the employees contribution of EPF & ESI fund and as per the binding decision of the Hon’ble High Court in Vijayshree Ltd. (supra) u/s 36(1)(va) of the Act since assessee had deposited the employees contribution before filing of Return of Income. Therefore, the assessee succeeds and we allow the appeal of the assessee.” 5. In view of the above proposition of law and the issue being squarely covered in favour of the assessee, the impugned order of the ld. CIT(A) is set aside. The appeal of the 5 ITA No. 02/GTY/2022 Dilip Pathak AY 2018-19 assessee is hereby allowed and the impugned addition made by the lower authorities is ordered to be deleted. 6. In the result, the appeal of assessee is allowed. Order is pronounced in the open court on 07.07.2022 Sd/- Sd/- (Manish Borad) (Sonjoy Sarma) Accountant Member Judicial Member Dated: 07.07.2022 Biswajit, Sr. PS Copy of the order forwarded to: 1. Appellant– Dilip Pathak. 2. Respondent – ACIT, Circle-2, Guwahati. 3. CIT(A), Shillong 4. CIT , 5. DR, ITAT, Guwahati. True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata