DCIT, CHENNAI V. Ford India Pvt. Ltd., Chengalput

ITA 255/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90477 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 29-01-2015
• Court: TRIBUNAL
• Department Lawyers: DR S MAHRANA
• Assessee Lawyers: M G RAMACHANDRANC A
• Keywords: Revised return
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , . , , BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.255 /MDS./2015 ( ! '! / ASSESSMENT YEAR :2001-02) DY. COMMISSIONER OF INCOME TAX, LARGE TAXPAYER UNIT-II, 1775,JAWAHARLAL NEHRU INNER RING ROAD, ANNANAGAR WESTERN EXTENSION CHENNAI 600 101. VS. M/S.FORD INDIA PVT. LTD., S.P.KOIL POST, CHENGALPATTU 603 204. PAN AAACM 4454 H ( / APPELLANT ) ( / RESPONDENT ) #$ % & / APPELLANT BY : DR.S. MAHRANA, CIT D.R '(#$ % & / RESPONDENT BY : MR.M.G.RAMACHANDRAN,C.A ) * % +, / DATE OF HEARING : 23.04.2015 -' % +, /DATE OF PRONOUNCEMENT : 19.06.2015 / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE REVENUE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-II, CHENN AI DATED ITA NO.255 /MDS/2015 2 17.10.2014 IN ITA NO.26/08-09/LTU(A) PASSED UNDER S EC.143(3) READ WITH SECTION SEC. 250 OF THE ACT. 2. THE REVENUE HAS RAISED THREE ELABORATE GROUNDS IN ITS APPEAL, HOWEVER THE CRUX OF THE ISSUE IS THAT THE LD.CIT(A) HAD ERRED BY CONFIRMING THE ORDER OF LD. ASSESSING OFFICER WHO H AD DISALLOWED THE CLAIM OF THE ASSESSEE AS DEDUCTION FOR THE DELAYED REMITTANCE OF EMPLOYERS AND EMPLOYEES CONTRIBUTION TO ESI AND P F AMOUNTING TO ` 50,19,793/- BEYOND THE DUE DATE OF THE RELEVANT AC TS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS A COMPANY, ENGAGED IN THE BUSINESS OF MANUFACTURING CARS, AUTO MOBILE ACCESSORIES, SPARES, ETC; FILED ITS RETURN OF INCOM E ON 30.10.2001 DECLARING TOTAL LOSS OF ` 41,04,46,745/- AFTER CLAIMING REFUND OF ` 5,56,827/-. THEREAFTER A REVISED RETURN WAS FILED ON 30.10.2002 ADMITTING THE LOSS OF RS.41,30,78,619/-. SUBSEQUENT LY THE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT U/S.143(3) OF THE ACT WAS MADE ON 30.03.2004, WHEREIN THE LD.A.O DISALLOWED A S DEDUCTION FOR THE DELAYED PAYMENT OF PF AND ESI BEYOND THE DATE P ERMISSIBLE ITA NO.255 /MDS/2015 3 UNDER THE RELEVANT ACT. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREIN BELOW:- LESS : THE AUDIT REPORT FILED ALONG WITH THE RETURN OF I NCOME INCORPORATED THE DETAILS OF PF CONTRIBUTION AND ESI CONTRIBUTION BY THE EMPLOYEE AND EMPLOYER. ON SCRUTINY OF THE SAME, IT IS NOTICED T HAT THE FOLLOWING PAYMENTS WERE MADE BEYOND THE DUE DATES FURNISHED UNDER THE PF & ESI ACT . MONTH AMOUNT OF CONTRIBUTION DUE DATE ACTUAL DATE OF PAYMENT PROVIDENT FUND BY EMPLOYER AND EMPLOYEE AUG 2000 764697 15.9.2000 16.9.2000 SEP.,2000 773162 15.10.2000 16.10.2000 DEC.,2000 779207 15.01.2000 17.01.2001 2317066X 2 4634132 ESI BY THE EMPLOYEE APRIL 2000 19097 21.5.2000 23.5.2000 JUNE 2000 17635 21.7.2000 22.7.2000 AUGUST 2000 15513 21.9.2000 22.09.2000 OCT.2000 22629 21.11.2000 22.11.2000 FEB.,2001 24782 21.3.2001 22.3.2001 99656 ESI BY THE EMPLOYER APRIL 2000 51828 21.5.2000 23.5.2000 JUNE 2000 47858 22.7.2000 22.7.2000 AUGUST 2000 57633 21.9.2000 22.9.2000 OCT.2000 61421 21.11.2000 22.11.2000 FEB.,2001 67265 21.3.2001 22.3.2001 286005 ITA NO.255 /MDS/2015 4 IT IS CLAIMED BY THE ASSESSEE THAT THE DELAY IN REM ITTANCE OF PF AND ESI ARE ADMISSIBLE SINCE HE PAYMENTS WERE MADE WITHIN THE G RACE PERIOD OF FIVE DAYS. THE HONBLE MADRAS HIGH COURT IN HE CASE OF CIT VS. MADRAS RADIATORS AND PRESSINGS LTD DATED 31.12.2002 IN 129 TAXMAN 709 MA D HELD THAT THE CONTRIBUTIONS SHOULD BE REMITTED ON OR BEFORE THE P RESCRIBED DATE IN THE IMMEDIATELY FOLLOWING MONTH, OTHERWISE DEDUCTION U/ S.36(1)(VIIA) WOULD NOT BE ALLOWED. RELYING ON THE DECISION REFERRED TO ABOVE, THE DELAYED REMITTANCE OF PF AND ESI AGGREGATING RS.5019793/- IS DISALLOWED. 4. ON APPEAL, THE LD. CIT(A) OBSERVED THAT DELAYED REMITTANCE OF THE EMPLOYERS AND EMPLOYEES CONTRIBUTION TO ESI AND P F IS ALLOWABLE DEDUCTION BECAUSE THEY WERE PAID BEFORE THE DUE DAT E OF FILING OF RETURN, HOWEVER DIRECTED THE LD. ASSESSING OFFICER TO VERIFY THE CHALLANS IN ORDER TO ASCERTAIN WHETHER THE PAYMENTS WERE MADE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. AGGRIEVED BY THE ORDER OF THE LD. CIT (A), THE REVENUE IS IN APPEAL BEFORE US. 5. AT THE OUTSET, THE LEARNED AUTHORIZED REPRESEN TATIVE SUBMITTED BEFORE US THAT THIS ISSUE IS ALSO SQUARELY COVERED BY THE DECISIONS OF THE CHENNAI BENCHES OF THE TRIBUNAL ON THE IDENTICA L ISSUE IN M/S.SOUTHERN WIND FARMS LTD. IN ITA NO.876,877 & 87 8/MDS./12 VIDE ORDER DATED 28.01.2014. THE LD. A.R. ALSO RELIED I N THE DECISION OF HONBLE GUJARAT HIGH COURT IN CIT-II VS. GUJARAT ST ATE ROAD ITA NO.255 /MDS/2015 5 TRANSPORT CORPORATION REPORTED IN [2014] 41 TAXMANN .COM 100(GUJ.). THE LD. D.R ON THE OTHER HAND RELIED ON THE ORDER O F THE LD. ASSESSING OFFICER AND ARGUED IN SUPPORT OF THE SAME . 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PE RUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE BEFORE US IS WHETHER THE PF CONTRIBUTION AND THE ESI CONTRIBUTION PAID BY THE A SSESSEE WILL BE ALLOWABLE AS DEDUCTION IF THE SAME IS REMITTED BEFO RE THE DUE DATE OF FILING OF RETURN IN VIEW OF SECTION 43B OF THE ACT. THIS ISSUE HAS BEEN DECIDED BY THE HONBLE JURISDICTIONAL MADRAS HIGH C OURT IN THE CASE CIT VS. NEXUS COMPUTER P. LTD REPORTED IN [2009] 31 3 ITR 144 (MAD.) WHEREIN IT WAS HELD FOLLOWING THE DECISION O F HONBLE APEX COURT CIT VS. VINYA CEMENT LTD., REPORTED IN 213 CT R 268 (SC) THAT THE ASSESSEE IS ENTITLED TO THE BENEFIT U/S. 43B OF THE ACT, IF THE CONTRIBUTION HAS BEEN PAID PRIOR TO THE DUE DATE OF FILING OF RETURN. THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE M/S.SOUTH ERN WIND FARMS LTD. VS. ACIT SUPRA HAS ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE ON THE EARLIER OCCASION FOLLOWING THE DECISION OF T HE HONBLE JURISDICTIONAL MADRAS HIGH COURT IN CIT VS. NEXUS C OMPUTER P. LTD ITA NO.255 /MDS/2015 6 (SUPRA). THEREFORE, WE DO NOT HAVE ANY HESITATION TO CONFIRM THE ORDER OF THE LD. CIT (A) WHO HAS ONLY FOLLOWED THE DECISION OF THE HON. APEX COURT. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED ON 19 TH JUNE, 2015 AT CHENNAI. SD/- SD/ - ( . . . ) ( N.R.S.GANESAN ) ( . '#$ %' ) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 19 TH JUNE, 2015. K S SUNDARAM. % '+./ 0 /'+ /COPY TO: 1. #$ /APPELLANT 2. '(#$ /RESPONDENT 3. ) 1+ () /CIT(A) 4. ) 1+ /CIT 5. /4 '+5 /DR 6. 6! 7* /GF