AO, ACIT, Circle-40, Kolkata, Kolkata V. Truckers India, Kolkata

ITA 2050/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6323 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 24-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D B ENCH, KOLKATA BEFORE : SHRI P.M. JAGTAP, ACCOUNTANT MEMB ER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 2050/KOL/2016 A.Y 2013-14 ASSISTANT COMMISSIONER VS. M/S. TRUCKERS IN DIA OF INCOME-TAX, CIR-40, PAN:AACFT2465N KOLKATA. [APPELLANT ] [RESPONDENT ] APPELLANT BY : SHRI ARINDAM BHATTACHARJEE, A DDL.CIT, LD.SR.DR RESPONDENT/DEPARTMENT BY : NONE APPEARED DATE OF HEARING : 14-02-2018 DATE OF PRONOUNCEMENT : 09-05-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DT. 27-07- 2016 OF THE CIT-A, 12, KOLKATA FOR THE A.Y 2012-13, WHEREIN HE DELETED THE IMPUGNED DISALLOWANCES MADE BY THE AO O N ACCOUNT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION OF PF & ESI U/S. 36(1)(VA) OF THE ACT. 2. AT THE TIME OF HEARING, WE FIND, THAT NEITHER TH E ASSESSEE NOR AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FILED SEEKING ADJOURNMENT. THEREFORE, W E PROCEED TO HEAR THE LD.DR FOR APPELLANT AND DISPOSE OF THE APPEAL ON MERITS AND BY PERUSING THE MATERIAL AVAILABLE ON RECORD. 3. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT-A IS JUSTIFIED IN DELETING THE IMPUGNED ADDITIONS MADE U /S. 2(24)(X) R.W.S 36(1)(VA) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A FIRM AND ENGAGED IN THE TRANSPORT BUSINESS AND FILED ITS RET URN ON 28-09-2013 ITA NO. 2050/KOL/2016 M/S.TRUCKERS INDIA 2 DECLARING A TOTAL INCOME OF RS.1,09,07,560/-. NOTI CES U/S. 143(2) AND 142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO W HICH, THE AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNIS HED VARIOUS DETAILS INCLUDING AUDITED ACCOUNTS AND TAX AUDIT RE PORT (TAR) AS SOUGHT BY THE AO. ON PERUSAL OF TAR & OTHER DOCUMEN T FILED BY THE ASSESSEE THE AO FOUND THAT EMPLOYEES CONTRIBUTION TO PF/ESI AMOUNTING TO RS.25,70,951/- (PF) AND RS.6,36,194/- (ESI) TOTALING TO RS. 32,07,145/- WERE DEPOSITED AFTER THE DUE DATE A S PER SECTION 2(24)(X) R.W.S 36(1)(VA) OF THE ACT. THE AO WAS OF THE VIEW THAT SINCE THE ASSESSEE HAD FAILED TO DEPOSIT THE SAME W ITHIN THE DUE DATE SPECIFIED U/S. 2(24)(X) R.W.S 36(1)(VA) OF THE ACT AND HELD IT IS NOT ALLOWABLE DEDUCTION AND DISALLOWED RS. 25,70,951/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE VIDE AN ORDER DT.25-03 -2015 PASSED U/S. 143(3) OF THE ACT. 5. AGGRIEVED BY SUCH ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT-A AND SUBMITTED THAT THE EMPL OYEES CONTRIBUTION WAS DEPOSITED BEFORE FILING OF RETURN OF INCOME AND IT IS AN AN ALLOWABLE DEDUCTION AND PLACED RELIANCE ON TH E DECISION OF HONBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSION S LTD REPORTED IN (2009) 319 ITR 306(SC) IN SUPPORT OF ITS CLAIM. 6. THE CIT-A PLACING RELIANCE ON THE DECISION OF HO NBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD. REPORTED IN (2009) 319 ITR 306(SC) DELETED THE IMPUGNED ADDITION MADE ON ACCO UNT OF DELAYED PAYMENT OF PF & ESI. RELEVANT PORTION OF FINDING OF THE CIT-A IN THIS REGARD IS REPRODUCED HEREIN BELOW FOR BETTER UNDER STANDING:- THEREFORE THE APPELLANTS CASE IS SQUARELY COVERED BY THE SAID TWO CASES NAMELY COMMISSIONER OF INCOME TAX V/S. ALOM EXTRUSIONS LTD . REPORTED IN (2009) 319 ITR 306(SC) AND CIT VS. HINDUSTAN ORGANICS CHEMICALS LT D. IT IS NOT IN DISPUTE THAT ASSESSEE HAD FILED THE RETURN OF INCOME FOR THE A.Y 2013-14 ON 28-09-2013. ALL THE PAYMENTS FOR THE EMPLOYEES CONTRIBUTION TO ESI WERE MADE BEFORE THE FILING OF THE ORIGINAL RETURN OF INCOME TAX, WHICH WAS REPORTED IN THE TAX AUDIT REP ORT IN FORM 3CD DATED 29.09.2013. IN VIEW OF ABOVE FINDINGS IT IS HELD THAT THE APP ELLANT GETS RELIEF ON BOTH COUNTS OF ESI AND PF PAYMENTS. HENCE, AMOUNTS OF RS.25,70,951/- O N ACCOUNT OF DELAYED PAYMENT OF PROVIDENT FUND OF EMPLOYEES CONTRIBUTION AND RS.6 ,36,194/- ON ACCOUNT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION OF ESI ARE DELET ED. ITA NO. 2050/KOL/2016 M/S.TRUCKERS INDIA 3 7. THE LD. DR RELIED ON THE ORDER OF THE AO. 8. HEARD THE LD. DR AND PERUSED THE RECORD. WE FIND THAT THE ISSUE IN HAND IS SQUARELY COVERED IN FAVOUR OF ASSE SSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F ALOM EXTRUSIONS LTD REPORTED IN (2009) 319 ITR 306(SC). THE CIT-A EXAMINED THE RECORD AND FOUND FROM THE TAX AUDIT REPORT IN FORM 3CD DATED 29.09.2013 THAT THE EMPLOYEES CONTRIBUTION WERE DEP OSITED BEFORE FILING THE RETURN OF INCOME. THE CIT-A HELD THE IMP UGNED AMOUNT OF RS. 32, 07,145/- DISALLOWED ON ACCOUNT OF DELAYED P AYMENT IS AN ALLOWABLE DEDUCTION AND DIRECTED THE AO TO DELETE. WE FIND THAT THE IMPUGNED AMOUNT DISALLOWED TOWARDS EMPLOYEES CONTR IBUTION TO PF AND ESI WERE DEPOSITED WELL WITHIN THE DUE DATE OF FILING OF RETURN OF INCOME U/S. 139(1) OF THE ACT. RESPECTFULLY FOLLOW ING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ALOM EXTR USIONS LTD. SUPRA, WE FIND NO INFIRMITY IN THE ORDER OF CIT-A A ND IT IS JUSTIFIED. GROUND NOS. 1 & 2 RAISED BY THE REVENUE ARE DISMI SSED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVEN UE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09-05-2018 SD/- SD/- P.M. JAGTAP S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 09-05-2018 **PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT/DEPARTMENT : THE ACIT, CIR-40, KOLKATA 2 ND FLOOR, 3 GOVT PLACE (W), KOLKATA-700 001. 2 RESPONDENT/ASSESSEE: M/S. TRUCKERS INDIA, 91 A.J.C BOSE ROAD, KOLKATA-700014. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER SR.P.S,H.O.O, ITAT .KOL