Multivision Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-2(1)(4), Ahmedabad

ITA 2138/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8547 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 20-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NIRZARI SHAH
• Section: 43B; 139

Judgement Text

, ,LK ,LK,LK ,LK- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA VEJTHR LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA VEJTHR LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA VEJTHR LOZJH EGKOHJ IZLKN] U;KF;D LNL; ,OA VEJTHR FLAG] YS [KK LNL; DS LE{KA FLAG] YS[KK LNL; DS LE{KA FLAG] YS[KK LNL; DS LE{KA FLAG] YS[KK LNL; DS LE{KA (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ) ./ I.T.A. NO. 2138/AHD/2015 ( / ASSESSMENT YEAR : 2012-13) M/S. MULTIVISION PVT. LTD. 25, RAOPURA SOCIETY, NR. MEMNGAR FIRE STATION, NAVRANGPURA, AHMEDABAD. / VS. INCOME TAX OFFICER WARD-2(1)(4) AHMEDABAD. ./ ./ PAN/GIR NO. : AAACM 8213 C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI NIRZARI SHAH / RESPONDENT BY : SHRI PRASOON KABRA, SR.D.R. / DATE OF HEARING 19/09/2017 !'# / DATE OF PRONOUNCEMENT 21/09/2017 $% / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-2, AHMEDABAD, D ATED 12/06/2015 FOR THE ASSESSMENT YEAR (AY) 2012-13, ON THE FOLLOWING GROUNDS: I. THE LEARNED CIT(A) HAS ERRED LAW AND ON FACTS IN CO NFIRMING AN ADDITION OF RS.1,75,742/- BEING PAYMENT OF CONTRIBU TION OF EMPLOYEES FOR P.F. ON THE GROUND THAT THE SAME HAVE BEEN PAID ITA NO. 2138/AHD/2015 M/S. MULTIVISION PVT. LTD. VS. ITO ASST.YEAR 2012-13 - 2 - LATE. IT IS SUBMITTED THAT THE LEARNED CIT(A) HAS E RRED IN INCORRECTLY INVOKING PROVISIONS OF SECTION 36(1)(VA ) AND HAS WRONGLY INTERPRETED PROVISIONS OF SECTION 43B OF TH E I.T. ACT. IT IS SUBMITTED THAT ON FACTS AND CIRCUMSTANCES OF THE CA SE THERE IS NO JUSTIFICATION BOTH ON FACTS AND ON LAW FOR SUCH DIS ALLOWANCE AS THE SAME HAS BEEN PAID BEFORE FILING OF RETURN U/S. 139(1). IT IS SUBMITTED THAT THE ADDITION OF RS.1,75,742/- BE DEL ETED. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION CONTRACTS. DURING THE YEAR THE ASSESSEE HAS DISCLOS ED OPERATING REVENUE OF RS.11,78,43,873/- ON CONSTRUCTION AND PROJECT RELAT ED ACTIVITY AND OTHER INCOME OF RS.11,59,653/- CONSISTING OF DIVIDEND AND INTEREST INCOME. 2.2 GOING THROUGH THE DETAILS OF PAYMENTS MADE BY T HE ASSESSEE TOWARDS PROVIDENT FUND/SUPERANNUATION FUND OF THE E MPLOYEES, IT IS NOTICED THAT THERE IS DELAY IN PAYMENTS AS UNDER: MONTH OF DEDUCTION EMPLOYEES CONSTRUCTIO N DUE DATE OF PAYMENT ACTUAL DATE OF PAYMENT MAY, 2011 17,588/- 20/06/2011 29/06/2011 JUNE 15,516/- 20/07/2011 23/07/2011 JULY 15,732/ - 20/08/2011 09/09/2011 AUGUST 15,732/- 20/09/2011 07/12/2011 SEPTEMBER 15,732/- 20/10/2011 07/12/2011 OCTOBER 12,018/ - 20/11/2011 07/12/2011 DECEMBER 20,856/ - 20/01/2011 27/01/2012 JANUARY, 2012 20,856/- 20/02/2011 02/03/2012 FEBRUARY, 2012 20,856/- 20/03/2011 23/03/2012 MARCH, 2012 20,856/ - 20/04/2011 02/05/2012 TOTAL 1,75,742/- ITA NO. 2138/AHD/2015 M/S. MULTIVISION PVT. LTD. VS. ITO ASST.YEAR 2012-13 - 3 - THIS WAS BROUGHT TO BE NOTICE OF THE LEARNED AR DUR ING THE HEARING BEFORE THE AO AND HE HAS ASKED TO SHOW-CAUSE AND AD DED TO THE TOTAL INCOME. IN THIS CONNECTION EXPLANATION HAVE BEEN SU BMITTED BY THE ASSESSEE AS FOLLOWS: AS ASKED TO SUBMIT EXPLANATION REGARDING WHY SHOUL D LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF/ESIC OF RS.1,91,474/- SHOULD NOT BE ADDED TO INCOME UNDER SECTION 2(24)(X) READ WITH SE CTION 36(1)(VA) OF INCOME TAX ACT. IN THIS CONNECTION, WE HAVE TO STAT E THAT AS SECTION 2(24)(X) PROVIDES THAT AMOUNTS RECEIVED BY AN ASSES SEE FROM EMPLOYEES TOWARDS PF CONTRIBUTIONS ETC. SHALL BE 'INCOME'. FU RTHER, SECTION 36(1)(VA) PROVIDES THAT IF SUCH SUMS ARE CONTRIBUTE D TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND ON OR BEFORE THE DATE SPECIFIED IN THE PF ETC. LEGISLATION, THE ASSESSEE SHALL BE ENTITLED TO A DEDUCTION. THE SECOND PROVISO TO SECTION 43B (B) PROVIDED THAT ANY SUM PA ID BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVID ENT FUND ETC. SHALL BE ALLOWED AS A DEDUCTION ONLY IF PAID ON OR BEFORE THE DUE DATE SPECIFIED IN 36(1)(VA). BUT AFTER THE OMISSION OF T HE SECOND PROVISO TO SECTION 43B OF THE ACT BY THE FINANCE ACT, 2003 W.E .F. 1/4/2004, THE DEDUCTION IS ALLOWABLE UNDER THE FIRST PROVISO IF T HE PAYMENT IS MADE ON OR BEFORE THE DATE OF FURNISHING THE RETURN OF INCO ME UNDER SUB SECTION 1 OF SECTION 139 OF THE ACT, ARE ALLOWABLE UNDER SECT ION 36(1)(VA) READ WITH SECTION 2(24)(X) AND SECTION 43B OF THE ACT. T HE HIGH COURT HAD TO CONSIDER WHETHER THE BENEFIT OF SECTION 43B CAN BE EXTENDED TO EMPLOYEES' CONTRIBUTION AS WELL WHICH ARE PAID AFTE R THE DUE DATE UNDER THE PF LAW BUT BEFORE THE DUE DATE FOR FILING THE R ETURN, HELD DECIDING IN FAVOUR OF THE ASSESSEE IN CASE OF CIT VS. VINAY CEMENT LGTD, 213 CTR 268 (SC) BESIDES DECISIONS IN CIT VS. DHARMENDR A SHARMA, 297 ITR 320 (DEL), CIT VS. P M ELECTRONICS LTD., 313 IT R 161 (DELHI).' HOWEVER EMPLOYER'S CONTRIBUTION (NOT EMPLOYEE'S CON TRIBUTION) TOWARDS SUCH FUND IS ALLOWED AS DEDUCTION SUBJECT TO SECTIO N 43B I.E. SUCH CONTRIBUTION IS PAID ON OR BEFORE THE DUE DATE OF F URNISHING RETURN SECTION 36(1)(VA) OF THE INCOME TAX ACT, 1961 - EMP LOYEE'S CONTRIBUTION - ASSESSMENT YEAR 2002-03 - WHETHER EM PLOYEES' CONTRIBUTION TOWARDS PROVIDENT FUND AND ESI WOULD Q UALITY FOR ITA NO. 2138/AHD/2015 M/S. MULTIVISION PVT. LTD. VS. ITO ASST.YEAR 2012-13 - 4 - DEDUCTION EVEN IF PAID AFTER DUE DATE PRESCRIBED UN DER PROVIDENT FUND ACT / ESI ACT BUT BEFORE DUE DATE OF FILING OF RETU RN - HELD, YES THE ASSESSEE HAS FURTHER RELIED ON THE FOLLOWING JU DGMENTS:- (I) [CIT VS. AIMIL LTD. [2010] 188 TAXMAN 265 (DELHI H. C.)] (II) CIT VS. M/S. KICHHA SUGAR COMPANY LTD. (ITA NO.50 O F 2009) (UTTRAKHAND H.C.)(2013). THE CONTENTION OF THE ASSESSEE WAS CONSIDERED BUT T HE SAME WAS NOT ACCEPTABLE TO THE LEARNED AO AND AN AMOUNT OF R S.1,75,742/- IS TREATED AS ASSESSEES INCOME U/S.2(24)(X) OF THE I. T. ACT AND SAME IS ADDED TO THE TOTAL INCOME. 3. THEREFORE, THE LEARNED ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LEARNED CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 4. NOW APPEAL IS BEFORE US. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD. WE HAV E HEARD BOTH THE PARTIES. THIS ISSUE IS COVERED AGAINST THE APPELLAN T BY THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION, 41 TAXMAN.COM 100, RELEVANT EXTRACT FROM THE JUDGMENT IS QUOTED AS UNDER:- SECTION 43B, READ WITH SECTION 36(1)(VA) OF THE IN COME-TAX ACT, 1961 BUSINESS DISALLOWANCE CERTAIN DEDUCTIONS TO BE AL LOWED ON ACTUAL PAYMENT (EMPLOYEES CONTRIBUTION) WHETHER WHERE AN EMPLOYER HAS NOT CREDITED SUM RECEIVED BY IT AS EMPLOYEES CONTR IBUTION TO EMPLOYEES ACCOUNT IN RELEVANT FUND ON OR BEFORE DU E DATE AS PRESCRIBED ITA NO. 2138/AHD/2015 M/S. MULTIVISION PVT. LTD. VS. ITO ASST.YEAR 2012-13 - 5 - IN EXPLANATION TO SECTION 36(1)(VA), ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTION OF SUCH AMOUNT THOUGH HE DEPOSITS SAME BE FORE DUE DATE PRESCRIBED UNDER SECTION 43B I.E., PRIOR TO FILING OF RETURN UNDER SECTION 139(1) HELD, YES ASSESSEE STATE TRANSPORT CORPO RATION COLLECTED A SUM BEING PROVIDENT FUND CONTRIBUTION FROM ITS EMPL OYEES HOWEVER, IT HAD DEPOSITED LESSER SUM IN PROVIDENT FUND ACCOUNT ASSESSING OFFICER DISALLOWED SAME UNDER SECTION 43B HOWEVER, COMMIS SIONER (APPEALS) DELETED DISALLOWANCE ON GROUND THAT EMPLOYEES CONTR IBUTION WAS DEPOSITED BEFORE FILING RETURN WHETHER SINCE ASSE SSEE HAD NOT DEPOSITED SAID CONTRIBUTION IN RESPECTIVE FUND ACCO UNT ON DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36(1)(VA), DIS ALLOWANCE MADE BY ASSESSING OFFICER WAS JUST AND PROPER HELD, YES [ PARA 8] [IN FAVOUR OF REVENUE] 6. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE JURIS DICTIONAL HIGH COURT THE DISALLOWANCE MADE BY THE AO IS UPHELD AND WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(A) . THEREFORE, WE DISMISS THE APPEAL. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 21/09/2017 SD/- SD/- VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG &' $ ( $ ) ()* $ ) ( AMARJIT SINGH ) ( MAHAVIR PR ASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 21/09/2017 PRITI YADAV, SR.PS ITA NO. 2138/AHD/2015 M/S. MULTIVISION PVT. LTD. VS. ITO ASST.YEAR 2012-13 - 6 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , -. / / CONCERNED CIT 4. / () / THE CIT(A)-2, AHMEDABAD. 5. 012 **-. , -.# , '&$,$ / DR, ITAT, AHMEDABAD 6. 245 6 / GUARD FILE. % & / BY ORDER, 0 * //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 19/09/2017 (DICTATION-PAD 1 PAGES ATTACHED AT THE END OF THIS APPEAL- FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/09/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER