A. Menarini India Pvt. Ltd., Ahmedabad V. The Dy. CIT, Circle-1(1)(1), Ahmedabad

ITA 2198/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8498 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 03-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KEYUR PATEL HEARING CONCLUDED
• Assessee Lawyers: RACHNA SHAH
• Section: 143(3)

Judgement Text

ITA NO.2198/AHD/2017 ASSESSMENT YEAR: 2013-14 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND MAHAVIR PRASAD JM] ITA NO.2198/AHD/2017 ASSESSMENT YEAR: 2013-14 A. MENARINI INDIA PVT. LTD., ..................APPELLANT A-101, SHAPATH-IV, NEAR KARNAVATI CLUB, S.G. HIGHWAY, AHMEDABAD 380 015. [PAN : AAACI 9822 K] VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1)(1), AHMEDABAD . ............................RESPONDENT APPEARANCES BY RACHNA SHAH FOR THE APPELLANT KEYUR PATEL FOR THE RESPONDENT HEARING CONCLUDED ON: 12.04.2018 ORDER PRONOUNCED ON : 19.04.2018 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 26 TH MAY, 2017, PASSED BY THE LEARNED CIT(A), IN THE MA TTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER), FOR THE ASSESSMENT YEAR 2013-14. 2. GRIEVANCE OF THE ASSESSEE IN SUBSTANCE IS AGAINS T THE DISALLOWANCE OF RS.32,19,963/- BEING THE AMOUNTS OF EMPLOYEES CONT RIBUTION BY INVOKING PROVISIONS OF SECTION 36(1)(VA) R.W.S. 2(24)(X) OF THE ACT. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEA RNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE FACT THAT THE DISALLOW ANCE HAS BEEN MADE ON THE BASIS OF ADOPTING DATE OF REALISATION OF CHEQUE RATHER THAN CHEQUE WAS TENDERED FOR THE PAYMENT OF PROVIDENT FUND DUES. IT IS POINTED OUT THAT FOR THE MONTH OF APRIL 2012 THE DATE ON WHICH CHEQUE TENDERED WAS 20.05.2012, FOR THE MONTH OF MAY 2012 THE DATE ON WHICH ITA NO.2198/AHD/2017 ASSESSMENT YEAR: 2013-14 PAGE 2 OF 3 THE CHEQUE TENDERED WAS 20.06.2012 AND FOR THE MONT H OF NOVEMBER 2012 THE DATE ON WHICH THE CHEQUE TENDERED WAS 20.11.2012. IT WAS S UBMITTED THAT THESE PAYMENTS WERE THUS CLEARLY WITHIN THE TIME AND YET SINCE THE REALISATION OF THE CHEQUE WAS ON A DATE LATER THAN 20 TH OF THE FOLLOWING MONTH THE SAME HAS BEEN DISALLOWE D AS BELATED PAYMENT OF PROVIDENT FUND DUES. THESE THREE PAYMEN TS WHICH WERE FOR THE AMOUNTS OF RS.7,95,533/- (APRIL 2012), RS.7,87,409/- (MAY 2012 ) AND RS.8,25,331/- (NOVEMBER 2012) WERE THUS, ACCORDING TO THE LEARNED COUNSEL, WRONGLY DISALLOWED. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT AS PER THE CI RCULAR ISSUED BY THE CBDT ITSELF IT IS THE DATE ON WHICH CHEQUE WAS PRESENTED/TENDERED THA T IS RELEVANT OR DETERMINING THE DATE OF PAYMENT OF THE GOVERNMENT DUES, AND NOT THE DATE OF REALISATION OF CHEQUE. OUR ATTENTION IS INVITED TO THE CIRCULAR NO.261 DAT ED 06.08.1979 WHICH SUPPORTS THE ABOVE PROPOSITION. WE THUS URGED TO DELETE THE DIS ALLOWANCE IN RESPECT OF ABOVE THREE PAYMENTS OF PROVIDENT FUND DUES. 4. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE STAND OF THE AUTHORITIES BELOW AND POINTED OUT THAT THIS ASPECT OF THE MATTER WAS NOT EXAMINED BY ANY OF THE AUTHORITIES BELOW. HE SUBMITS THAT T HE ISSUE IN APPEAL IS SQUARELY COVERED AGAINST THE ASSESSEE BY HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION, 366 I TR 170 (GUJ.). WE THUS URGE TO CONFIRM THE STAND OF THE AUTHORITIES BELOW AND DECL INE TO INTERFERE IN THE MATTER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 6. WE FIND THAT THE ASSESSEE HAS SPECIFICALLY RAISE D THE ISSUE WITH RESPECT TO PAYMENT OF GOVERNMENT DUES AT THE TIME OF TENDERING THE CHEQUE ON OR BEFORE 20 TH OF SUBSEQUENT MONTH AND IT WAS ALSO STATED IN THE STAT EMENT OF FACT FILED BY THE LEARNED CIT(A) , YET THE INCOME TAX OFFICER HAS NOT DEALT W ITH THIS ASPECT OF THE MATTER. WHILE IT IS INDEED TRUE THAT THE CBDT CIRCULAR, ON WHICH REL IANCE WAS PLACED BY THE ASSESSEE, WAS IN RESPECT OF ADVANCE TAX PAYMENT AND NOT GOVER NMENT DUES IN GENERAL, IN OUR OPINION, SAME PRINCIPLE MUST FOLLOW WITH RESPECT TO OTHER GOVERNMENT PAYMENTS AS WELL. IN EFFECT THUS, AS LONG AS THERE IS A REASONABLE EV IDENCE OF THE ASSESSEE HAVING MADE THE PAYMENT BY CHEQUE BY TENDERING THE CHEQUE WITHI N THE SPECIFIED TIME, THE PAYMENT CANNOT BE TREATED AS BELATED PAYMENT MERELY BECAUSE CHEQUE WAS ENCASHED ON A LATER DATE. THE PLEA OF THE ASSESSEE IS INDEED WELL TAKE N AND MERITS BEING ACCEPTED. WE, ITA NO.2198/AHD/2017 ASSESSMENT YEAR: 2013-14 PAGE 3 OF 3 THEREFORE, ACCEPT THIS PLEA OF THE ASSESSEE IN PRIN CIPLE BUT REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR LIMITED VERIFICATION AS A BOVE THAT THE DATE ON WHICH THE CHEQUE WAS TENDERED FOR PAYMENT OF THE PROVIDENT FUND DUES . IN CASE THERE IS REASONABLE EVIDENCE TO THE EFFECT THAT THE CHEQUE WAS TENDERED ON OR BEFORE THE DUE DATE, THEN THE ASSESSING OFFICER WILL DELETE THE RELATED DISALLOWA NCE. WITH THESE DIRECTIONS, THE MATTER STANDS RESTORED TO THE FILE OF ASSESSING OFFICER. 7. IN THE RESULT, APPEAL IS ALLOWED IN THE ABOVE TE RMS. PRONOUNCED IN THE OPEN COURT TODAY ON THE 19 TH APRIL, 2018. SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEM BER) DATED: 19 TH APRIL, 2018 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD