M/s ASK ME LAB CON SERVICES PVT LTD., Ahmedabad V. ITO, Ward-1(1)(4), Ahmedabad

ITA 2183/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7999 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 29-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 28

Judgement Text

ITA NO. 2183/AHD/2017 ASK ME LAB CON SERVICES PVT LTD VS. ITO ASSESSMENT YEAR: 2014-15 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, AM AND MS. MADHUMITA ROY, JM] ITA NO. 2183/AHD/2017 ASSESSMENT YEAR: 2014-15 ASK ME LAB CON SERVICES PVT LTD ............. .....APPELLANT A-355, GHANSHYAM NAGA, OPP. KOTARPUR WORKS, NEAR NOBEL NAGAR, AHMEDABAD 382 405 [PAN : AAECA 6822 H] VS. INCOME TAX OFFICER ...........................RESPONDENT WARD-1(1)(4), AHMEDABAD APPEARANCES BY: NONE FOR THE APPELLANT SAURABH SINGH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 22.06.2018 DATE OF PRONOUNCING THE ORDER : 27.06.2018 O R D E R PER PRAMOD KUMAR, AM: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 31 ST JULY, 2017 PASSED BY THE BY THE CIT(A)-1, AHMEDABA D IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE IN COME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2014-15. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.37,53,060/-, WHICH WA S ADDED BY THE ASSESSING OFFICER WITH THE AID OF SECTION 36(1)(VA) R.W.S. 2(24)(X) O F THE INCOME-TAX ACT, 1961, FOR THE LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF/ESI. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE; HOWEVER, WE FIND THAT THE ISSUE IN QUESTION IS SQUARELY COVE RED AGAINST THE ASSESSEE BY HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION, 366 ITR 170 (GUJ.), WHE REIN IT IS CATEGORICALLY HELD THAT IN THE CASE OF DELAYED DEPOSIT OF EMPLOYEES CONTRIB UTION TO PF, THE SAME WILL NOT BE DEDUCTABLE IN COMPUTING INCOME UNDER SECTION 28 OF THE ACT. THE LAW SO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IS BINDING ON US. THE MERE FACT THAT AN APPEAL AGAINST THE SAID DECISION IS PENDING BEFORE THE HONBLE SUPREME COURT DOES NOT DILUTE BINDING NATURE OF THIS JUDICIAL PRECEDEN T. AS REGARD DISMISSAL OF SLP IN THE CASE OF RAJASTHAN STATE BEVERAGES CORPORATION LTD, (2017) 84 TAXMANN.COM 185 (SC), IT IS ONLY ELEMENTARY THAT WHEN A SLP IS DISM ISSED BY A NON-SPEAKING ORDER, IT DOES NOT CONSTITUTE A LAW DECLARED BY HONBLE SUPRE ME COURT, AND AS SUCH, IT IS NOT BINDING UNDER ARTICLE 141 OF THE CONSTITUTION OF IN DIA. THE AUTHORITY, FOR THIS ITA NO. 2183/AHD/2017 ASK ME LAB CON SERVICES PVT LTD VS. ITO ASSESSMENT YEAR: 2014-15 PAGE 2 OF 2 PROPOSITION, IS CONTAINED IN A SERIES OF JUDGMENTS OF HONBLE SUPREME COURT, INCLUDING, INTER ALIA, IN THE CASES OF STATE OF MAN IPUR VS. THINGUJAM BROJEN MEETAI, (1996) 9 SCC 29; OM PRAKASH GARGI V. STATE OF PUNJA B, (1996) 11 SCC 399 AND SUN EXPORT CORPN V. COLLECTOR OF CUSTOMS, AIR 1997 SC 2658. WE, THEREFORE, SEE NO LEGALLY SUSTAINABLE MERIT IN THE CASE OF THE ASS ESSEE AND, RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION (SUPRA), DISMISS THE GRIEVANC E OF THE ASSESSEE IN PRINCIPLE. WE MAY, HOWEVER, ADD THAT A CO-ORDINATE BENCH OF TH IS TRIBUNAL, IN THE CASE OF RAJJRATNA METAL INDUSTRIES LTD VS. ACIT (ITA NO.940 /AHD/2015; ORDER DATED 22.09.2017), HAS OBSERVED AS FOLLOWS:- 3. ASSESSEE'S LATTER SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES' ACTION DISALLOWING/ADDING A SUM OF RS.3,85,810/- U/S. 36(1)(VA) R.W.S. 2(24) OF THE ACT ON ACCOUNT LATE P AYMENT OF EMPLOYEES' CONTRIBUTION TO PF & ESI IN QUESTION. THERE IS NO D ISPUTE THAT HON'BLE JURISDICTIONAL HIGH COURT'S DECISION IN CIT VS. GUJ ARAT STATE ROAD TRANSPORT CORPORATION (2014) 366 ITR 170 (GUJ) UPHOLDS SUCH A DISALLOWANCE IN PRINCIPLE. THE ASSESSEE'S CASE HOWEVER IS THAT RELE VANT DUE DATE HAS TO BE SEEN NOT FROM THE RELEVANT MONTH OF SALARY BUT THE ONE PERTAINING TO ITS PAYMENT. HE THEN FILES A COMPUTATION CHART INDICATI NG IT TO HAVE PAID ABOVE EMPLOYEES' PF/ESI CONTRIBUTIONS ON 22.05.2009 AND 2 8.05.2009 AS AGAINST THE DUE DATES THEREOF FOLLOWING ON 20.06.2009. THE REVENUE FAILS TO DISPUTE THIS FACTUAL POSITION. WE THEREFORE QUOTE THIS TRIB UNAL'S CO-ORDINATE BENCH DECISION IN KANOI PAPER & INDUSTRIES LTD. VS. ACIT 75 TTJ 448 THAT THE RELEVANT DATE IN SUCH CASE IS THAT OF MONTH OF THE ACTUAL PAYMENT OF WAGES/SALARIES. WE THEREFORE RELY ON THE ABOVE CO-O RDINATE BENCH DECISION AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPU GNED DISALLOWANCE AS WELL. 4. IN EFFECT THUS WHILE ANY DELAYED DEPOSIT OF PF/E SI IS TO BE DISALLOWED, IN TERMS OF HONBLE GUJARAT HIGH COURTS JUDGMENT IN THE CAS E OF GUJARAT STATE ROAD TRANSPORT CORPORATION (SUPRA), THE QUESTION AS TO W HETHER THERE IS A DELAY OR NOT MAY BE DECIDED BY THE ASSESSING OFFICER IN THE LIGHT OF ABOVE OBSERVATIONS BY THE CO- ORDINATE BENCH. THE ASSESSEE WILL GET RELIEF, IF F OUND ADMISSIBLE, ON THAT BASIS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 27 TH JUNE, 2018 SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 27 TH DAY OF JUNE, 2018 **BT COPIES TO: (1) THE APPELLANT ( 2) THE RESPONDENT (3) COMMISSIONER (4) C IT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD