Haryana Roadways Engineering Corporation Ltd., Gurgaon V. ACIT, Gurgaon

ITA 2180/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3797 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Assessee Lawyers: HARISH NAYYAR
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL ITA NO. 2180/DEL/09 A.Y. 2005-06 HARYANA ROADWAYS ENGINEERING VS. ACIT, GURGAON CORPORATION LTD., 6 TH MILESTONE, JAIPUR GURGAON HIGHWAY, GURGAON. PAN/ GIR NO. AAA8157K ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI HARISH NAYYAR CA RESPONDENT BY : SHRI MANISH GUPTA SR. DR O R D E R PER R.P. TOLANI , J.M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED CIT(APPEALS) DATED 6-3-2009 RELATING TO ASSESSMENT YEAR 2005-06. THE SOLE EFFECTIVE GROUND RAISED BY THE ASSESSEE IS AS UND ER: THAT THE CIT(A) ERRED BOTH ON FACTS AND LAW IN CON FIRMING THE ADDITION AMOUNTING TO RS. 119225 ON ACCOUNT OF PROV IDENT FUND AND ESI DEPOSITED BEYOND THE PRESCRIBED DATE UNDER THE LAW GOVERNING THESE DEPOSITS. THE ADDITION MADE IS UNJU STIFIED, ILLEGAL AND DESERVES TO BE QUASHED. 2. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE O UT SET CONTENDS THAT PAYMENT OF IMPUGNED PF AND ESI WAS MADE BEFORE THE DUE DAT E FOR FILING OF RETURN U/S 139(1) AND AS SUCH THE ISSUE IN QUESTION IS SQU ARELY COVERED IN FAVOUR ITA 2180/DEL/09 HARYANA ROADWAYS ENGINEERING CORPN. LTD. 2 OF THE ASSESSEE BY THE RATIO OF DECISION OF HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF P.M.ELECTRONICS 220 CTR 63 5. 3. THE LEARNED DR, ON THE OTHER HAND RELIED ON THE ORDERS OF AO AND CIT(A). 4. WE HAVE CAREFULLY CONSIDERED THE ENTIRE MATERIAL ON RECORD AND THE RIVAL SUBMISSIONS. IN VIEW OF THE DECISION OF JURIS DICTIONAL HIGH COURT IN THE CASE OF P.M.ELECTRONICS 220 CTR 635, BOTH EMPLOYER S AND EMPLOYEES CONTRIBUTION CANNOT BE DISALLOWED IF THE SAME ARE P AID BEFORE THE LAST DATE OF FILING THE RETURN. IN THE AFORESAID CASE, THE ISSU E FOR CONSIDERATION BEFORE THE HIGH COURT WAS ALLOWABILITY OF DEDUCTION U/S 36(1)( VA) READ WITH SECTION 2(24) AND SECTION 43B IN RESPECT OF EMPLOYER/EMPLOY EES CONTRIBUTION TOWARDS PF CONTRIBUTION WHICH WAS MADE AFTER DUE DA TE PRESCRIBED UNDER THE EPF ACT AND THE RULES MADE THEREIN BUT BEFORE THE D UE DATE FOR FURNISHING THE RETURN OF INCOME U/S 139(1). THE HONBLE HIGH COURT CONFIRMED THE ORDER OF THE TRIBUNAL TO THE EFFECT THAT AMENDMENT BROUGHT IN SECTION 43B BY VIRTUE OF FINANCE ACT, 2003 WAS CURATIVE IN NATURE AND HENCE APPLICABLE RETROSPECTIVELY. THEREAFTER, BY FOLLOWING THE VERD ICT OF HON'BLE SUPREME COURT IN THE CASE OF VINAY CEMENT 213 ITR 268 WHI CH WAS FOLLOWED BY THE DIVISION BENCH OF DELHI HIGH COURT IN THE CASE OF DHARMENDRA SHARMA 297 ITR 20, THE HONBLE HIGH COURT OBSERVED THAT THE VIEW TAKEN BY THE TRIBUNAL DESERVES TO BE SUSTAINED AS IT IS NOT RES- INTEGRA IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF VI NAY CEMENT. 4.1. IN THE INSTANT CASE BEFORE US, THERE IS NO DI SPUTE THAT PAYMENT OF EMPLOYEES CONTRIBUTION TO PF WAS MADE BEFORE THE D UE DATE FOR FILING OF THE RETURN U/S 139(1). ACCORDINGLY, RESPECTFULLY FOLLO WING THE DECISION OF JURISDICTIONAL HIGH COURT, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW ON THE ISSUE IN QUESTION AND ALLOW THE CLAIM OF THE ASSESS EE. ITA 2180/DEL/09 HARYANA ROADWAYS ENGINEERING CORPN. LTD. 3 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 16 TH JUNE, 2010. SD/- SD/- (K.G. BANSAL ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH JUNE 2010. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA 2180/DEL/09 HARYANA ROADWAYS ENGINEERING CORPN. LTD. 4