ACIT, Circle - 1, Durgapur V. M/s. DGP Steel Star Engg. Pvt. Ltd., , Durgapur

ITA 2470/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7927 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHANKAR HALDER
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.2470/KOL/2018 ( / ASSESSMENT YEAR:2013-14) ACIT, CIRCLE-1, DURGAPUR VS. M/S DGP STEEL STAR ENGG. PVT. LTD. G.T. ROAD, BHIRINGI, DURGAPUR- 713213 ./ ./PAN/GIR NO.: AABCD 0084 F (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI SOURADEEP MAJUMDAR, ADVOCATE RESPONDENT BY : SHRI SHANKAR HALDER, JCIT, SR. DR / DATE OF HEARING : 24/04/2019 /DATE OF PRONOUNCEMENT : 19/07/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTA INING TO ASSESSMENT YEAR 2013-14, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-DURGAPUR, WHICH IN TURN ARISES OUT OF AN A SSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT) DATED,30/03/2016. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: 1. WHETHER THE LD. CIT(A)- DGP HAS ERRED IN DELETIN G THE ADDITION MADE BY THE A.O. AMOUNTING TO RS. 69,83,785/- ON ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS PF & ESIC WHICH WERE DEPOSITED BEYOND DUE DATE IN VIOLATION OF SEC. 36(1)(VA) READ WITH RULE 2(24)(X) OF THE IT ACT, 1961. M/S DGP STEEL STAR ENGG. PVT. LTD. ITA NO.2470/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 2 22 2 2. THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AM END, MODIFY, SUBSTITUTE, DELETE AND /OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE FINAL HEARING. 3.AFTER GIVING OUR THOUGHTFUL CONSIDERATION TO THE SUBMISSION OF THE PARTIES AND PERUSING THE JUDICIAL DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS NO LONGER RES INTEGRA. HOWEVER, LD DR FOR THE REVENUE HAS RELIED ON THE STAND TAKEN BY THE ASSESSING OFFICER. WE NOTE THAT THEASSESSEE COMPANY FILED ITS RETURN OF I NCOME ON 29.03.2013 DECLARING TOTAL INCOME OF RS. 69,14,350/-. THE ASSESSEES CAS E WAS SELECTED FOR SCRUTINY U/S 143(2) OF THE ACT. DURING THE ASSESSMENT PROCEEDING S, THE ASSESSING OFFICER NOTED THAT THERE WERE DELAY IN MAKING THE PAYMENT OF EMPL OYEES CONTRIBUTION TO PROVIDENT FUND (PF) AND EMPLOYEES STATE INSURANCE CORPORATION (ESIC) FUND. THE ASSESSING OFFICER, NOTICED THAT ASSESSEE HAS DE POSITED THE ESIC AND PF CONTRIBUTION TO THE GOVERNMENT ACCOUNT BEYOND THE D UE DATE.THE ASSESSING OFFICER MADE THE DETAILS OF LATE PAYMENT OF ESIC AND PF CON TRIBUTION IN THE ASSESSMENT ORDER PAGE NO.3.SINCE THERE WAS A DELAY IN DEPOSITI NG PF AND ESIC CONTRIBUTION,THEREFORE A SHOW CAUSE NOTICE WAS ISSU ED BY THE ASSESSING OFFICER TO THE ASSESSEE REQUIRING HIM TO EXPLAIN AS TO WHY SAI D AMOUNTS I.E. RS. 60,13,030/- AND RS. 9,70,755/- FOR DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PF AND FOR DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TOWAR DS ESI RESPECTIVELY IN GOVT. ACCOUNT SHOULD NOT BE DISALLOWED AND ADDED TO ITS T OTAL INCOME. THE ASSESSEE COULD NOT OFFER ANY PLAUSIBLE EXPLANATION ON THIS ISSUE. THEREFORE, AO MADE ADDITION OF RS. 69,83,785/- (RS. 60,13,030 + RS. 9,70,755). 4. ON APPEAL, LD CIT(A) DELETED THE ADDITION. WE NO TE THAT THE PRESENT ISSUE HAS BEEN COVERED IN FAVOUR OF THE ASSESSEE BY THE HON'B LE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. VIJAY SHREE LTD IN ITA NO.245 O F 2011. THE HON'BLE CALCUTTA HIGH COURT HELD RELIED ON THE JUDGMENT IN THE CASE OF CIT VS. ALOM EXTRUSION LTD. 390 ITR 306, WHEREIN THE SUPREME COURT HAS HEL D THAT THE AMENDMENT TO THE SECOND PROVISIO TO SECTION 43(B) AS INTRODUCED BY F INANCE ACT, 2003, WAS CURATIVE IN NATURE AND IS REQUIRED TO BE APPLIED RETROSPECTI VELY WITH EFFECT FROM 1 ST APRIL, 1988. SUCH BEING THEPOSITION, THE DELETION OF THE A MOUNT PAID BY THE EMPLOYEES M/S DGP STEEL STAR ENGG. PVT. LTD. ITA NO.2470/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 3 33 3 CONTRIBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVO KING THE AFORESAID AMENDED PROVISIONS OF SECTION 43(B) OF THE ACT. SINCE THE I SSUE HAS BEEN DECIDED BY THE JURISDICTIONAL HIGH COURT IN THE FAVOUR OF THE ASSE SSEE, THEREFORE RESPECTING THE JUDICIAL DISCIPLINE, IT IS HELD, ON THE FACTS AND I N THE CIRCUMSTANCES OF THE INSTANT CASE, THAT THE A.O. WAS NOT JUSTIFIED IN DISALLOWIN G THE EMPLOYEES CONTRIBUTION RECEIVED BY THE ASSESSEE BUT PAID BEFORE FILING THE RETURN OF INCOME. THEREFORE, SUCH ADDITION MADE BY THE A.O. SHOULD BE DELETED. T HAT BEING SO, WE DECLINE TO INTERFERE WITH THE ORDER OF ID. C.I T.(A) IN DELETI NG THE AFORESAID ADDITIONS. HIS ORDER ON THIS ADDITION IS, THEREFORE, UPHELD AND TH E GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 19.07.2019 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 19/07/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ACIT, CIRCLE-1, DURGAPUR 2. M/S DGP STEEL STAR ENGG. PVT. LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES