Earth Pavers (Hyderabad) Private Limited, Hyderabad V. Income Tax Officer, Ward-17(2), Hyderabad

ITA 2/Hyd/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6544 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 01-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KOMALI KRISHNA
• Assessee Lawyers: A V RAGHURAM; T CHAITANYA KUMAR ARS
• Section: 43B; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT I.T.A. NO. 02/HYD/2018 ASSESSMENT YEAR: 2014-15 M/S. EARTH PAVERS (HYDERABAD) PRIVATE LIMITED, HYDERABAD [PAN: AAACE4413E] VS INCOME TAX OFFICER, WARD-17(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI A.V. RAGHU RAM & SHRI T. CHAITANYA KUMAR, ARS FOR REVENUE : SMT. KOMALI KRISHNA, DR DATE OF HEARING : 05-07-2018 DATE OF PRONOUNCEMENT : 05-07-2018 O R D E R THIS APPEAL BY THE ASSESSEE-COMPANY IS DIRECTED AGA INST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-5, HYDERABAD. FOLLOWING GROUNDS WERE URG ED BEFORE US: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LEARNED CIT(A) DISMISSING THE APPEAL FILED BY THE A PPELLANT IS ERRONEOUS, ILLEGAL AND UNSUSTAINABLE IN LAW. 2. THE LEARNED CIT(A) ERRED IN SUSTAINING THE ADDIT ION OF RS. 3,83,324/- MADE BY THE ASSESSING OFFICER AS PER THE PROVISIONS OF SECTION 36(1)(VA) OF THE I.T.ACT, 1961. THE FIN DING OF THE LEARNED CIT(A) ON THE ISSUES ARE LEGALLY INCORRECT AND UNSUSTAINABLE. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE VARIOUS JUDGEMENTS OF HIGH COURTS WHICH ARE IN FAVOUR OF THE APPELLANT, I NCLUDING THE ORDER OF THE JURISDICTIONAL TRIBUNAL. 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. I.T.A. NO. 02/HYD/2018 :- 2 - : 2. I HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE AS W ELL AS THE LD. DEPARTMENTAL REPRESENTATIVE AND CAREFULLY PERUSE D THE RECORD. THE ASSESSEE-COMPANY MADE BELATED REMITTANCE S OF EMPLOYEES CONTRIBUTIONS TO ESI AND PF AMOUNTING TO RS. 3,83,324/-. THE AO DISALLOWED THE SAME ON THE GROUND THAT THIS IS IN VIOLATION OF PROVISIONS OF SECTION 36(1)(VA ) OF THE INCOME TAX ACT AND THE SAME WAS CONFIRMED BY THE CIT(A ), EVEN THOUGH IT WAS CONTENDED THAT THE AMOUNT IS PAID BEFOR E THE DUE DATE FOR FILING THE RETURN OF INCOME U/S. 139 (1) OF THE ACT. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. LD. COUNSEL SUBMITTED THAT IDENTICAL ISSUE WAS CONSIDERED BY THE HYDERABAD BENCHES OF ITAT, WHEREIN IT WAS CONSISTENTLY HELD THAT IN THE LIGHT OF THE DECISION OF T HE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS L TD., [319 ITR 36], SO LONG AS THE REMITTANCES ARE MADE ON O R BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME U/S. 139 (1) OF THE ACT, NO DISALLOWANCE CAN BE MADE U/S. 43B OF THE ACT. IN THE SAID CASES, THE TRIBUNAL HAS ALSO CONSIDERED THE IMPA CT OF SECTION 36(1)(VA) AND SECTION 2(24)(X) OF THE ACT, BUT HELD THAT SO LONG AS THE REMITTANCES ARE MADE BEFORE THE DATE OF FILING OF THE RETURN OF INCOME, NO DISALLOWANCE CAN BE MADE UND ER THE ACT. LD. COUNSEL PLACED ON RECORD A COPY OF THE ORDE R OF THE ITAT, HYDERABAD IN THE CASE OF ITO VS. M/S. GOOD HEA LTH TPA SERVICES LTD., IN ITA NO. 1706/HYD/2016, DT. 15-03-20 17, WHEREIN THE BENCH OBSERVED AS UNDER: 4. WE HEARD BOTH THE PARTIES AND PERUSED THE MATER IAL ON RECORD. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR ACCEPTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS COVERED I.T.A. NO. 02/HYD/2018 :- 3 - : BY THE DECISION OF ITAT, HYDERABAD 'B' BENCH IN THE CASE OF ITO VS M/S. GOLDEN STAR FACILITIES AND SERVICES PVT. LTD I N ITA NO. 840/HYD/2016 DATED 01-10-2016, WHEREIN THE ITAT, UN DER SIMILAR CIRCUMSTANCES HELD THAT EMPLOYEES CONTRIBUTION TO E PF AND ESI IS DEDUCTIBLE, IF THE SAME IS PAID ON OR BEFORE THE DU E DATE OF FILING OF RETURN U/S 139(1) OF THE IT ACT, 1961. WE FIND THAT THE COORDINATE BENCH OF ITAT, BY FOLLOWING THE DECISION OF HON'BLE SUPREME COURT, IN THE CASE OF CIT VS ALOM EXTRUSIONS LTD., 319 ITR 36 AND ALSO ITAT, HYDERABAD 'A' BENCH DECISION IN THE CASE OF VBC IND USTRIES LTD. VS. DCIT IN ITA NO. 143/HYD/2013, OBSERVED THAT EMPLOYE ES CONTRIBUTION TO EPF AND ESI IS DEDUCTIBLE, IF THE S AME IS PAID ON OR BEFORE THE DUE DATE OF FILING OF THE RETURN U/S 139 (1) OF THE IT ACT. THE REVENUE HAS FAILED TO BROUGHT ON RECORD ANY OTHER D ECISION CONTRARY TO THE DECISION TAKEN BY THE HON'BLE SUPREME COURT, IN THE CASE OF ALOM EXTRUSIONS LTD., (SUPRA) AND FOLLOWED BY THE I TAT, HYDERABAD BENCH IN THE CASE OF ITO VS M/S. GOLDEN STAR FACILI TIES AND SERVICES PVT. LTD IN ITA NO. 840/HYD/2016 DATED 01-10-2016. WE THEREFORE, OF THE VIEW THAT DEDUCTION IS AVAILABLE TOWARDS EMP LOYEES SHARE OF CONTRIBUTION TO EPF AND ESI, REMITTED ON OR BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE IT ACT. HENCE, W E UPHELD THE ORDER OF THE CIT (A) AND DISMISSED THE APPEAL FILED BY THE R EVENUE. 4. LD.DR ADMITTED THAT THE ITAT, HYDERABAD HAS BEEN CONSISTENTLY HOLDING THE SAME VIEW. IN THE LIGHT OF THE DECISION OF THE ITAT CITED SUPRA, I HOLD THAT THE DISALLOWANCE MADE BY THE AO IS NOT IN ACCORDANCE WITH LAW AND THEREFORE DIRE CTED THE AO TO DELETE THE SAME. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 5 TH JULY, 2018 UPON CONCLUSION OF HEARING SD/- (D. MANMOHAN ) VICE PRESIDENT HYDERABAD, DATED 5 TH JULY, 2018 TNMM I.T.A. NO. 02/HYD/2018 :- 4 - : COPY TO : 1. M/S. EARTH PAVERS (HYDERABAD) PRIVATE LIMITED, C/O. K. VASANT KUMAR, A.V. RAGHU RAM, P. VINOD & M. NEEL IMA DEVI, ADVOCATES, 610, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD. 2. INCOME TAX OFFICER, WARD-17(2), HYDERABAD. 3. CIT (APPEALS)-5, HYDERABAD. 4. PR.CIT(5)-HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.