Parikh Packaging Pvt Ltd., Ahmedabad V. ITO, Ward-3(1)(2), Ahmedabad

ITA 2778/AHD/2017

• Counselvise Citation: [2019] 114 COUNSELVISE.COM (IT) 6173 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 25-10-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 08-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Section: 43B; 139(1)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASSEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO. 2778/AHD/2017 ( / ASSESSMENT YEAR: 2013-14) PARIKH PACKAGING PVT. LTD. OPP. ROTOMAC PENS, SARKHEJ BAWLA HIGHWAY, VILLAGE MORAIYA, TAL SANAND, AHMEDABAD / VS. ITO WD-3(1)(2) 4 TH FLOOR, B-402, PRATYAKSH KAR BHAVAN, AMBAWADI, AHMEDABAD- 380015 ./ ./ PAN/GIR NO. : AAB CP7 894 F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MEHUL TALERA, AR / RESPONDENT BY : SHRI L. P. JAIN, SR. DR / DATE OF HEARING 25/10/2019 !'# / DATE OF PRONOUNCEMENT 18/11/2019 $%/ O R D E R PER MAHAVIR PRASAD - JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF LD. CIT(A)-9/10555/ITO WD-3(1)(2)/16-17 DA TED 11.09.2017 ARISING OUT OF ASSESSMENT ORDER DATED 29 .02.2016 AND ASSESSEE HAS TAKEN FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) ERRED IN CONFIRMING DISALLOWANCE OF RS. 35,93,362/- MADE BY THE ASSESSING OFFICER ON ACCOUN T OF LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF. ITA NO.2778/AHD/2017 [PARIKH PACKAGING PVT. LTD. VS. ITO] A.Y. 2013-14 - 2 - 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEF ORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 2. IN THIS CASE ASSESSEE IS IN THE BUSINESS OF TEXT ILE MACHINERY PARTS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS SEEN THAT THE ASSESSEE HAS DEPOSITED PF AND ESI IN GOVER NMENT ACCOUNT AFTER THE DUE DATE PRESCRIBED FOR THAT. VIDE NOTIC E DATED 28.07.2015 THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAME MAY NOT BE DISALLOWED AND ADDED BACK TO THE TOTAL I NCOME U/S. 36(1)(VA) R.W.S 2(24)(X) OF THE I.T. ACT. THE ASSE SSEE VIDE LETTER DATED STATED THAT THE SAME IS ALLOWABLE AS PER HIGH COURT DECISION IN THE CASE OF CIT VS. SABARI ENTERPRISE, 298 ITR 1 41. HOWEVER, THE SAID JUDGMENT IS IN RESPECT OF EMPLOYERS CONTR IBUTION AND NOT FOR EMPLOYEE CONTRIBUTION AND LD. AO MADE AN ADDITI ON OF RS. 35,93,362/- AS ASSESSEE FAILED TO DEPOSIT EMPLOYEES CONTRIBUTION TO PF AND ESI WITHIN DUE DATE AS SPECIFIED IN EXPLA NATION TO SEC. 36(1)(VA). AGAINST THE ORDER OF AO ASSESSEE PREFER RED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO CONFIRME D THE ACTION OF THE LD. AO. 3. WE HAVE GONE THROUGH THE RELEVANT RECORD AND THE IMPUGNED ORDER AT THE TIME OF HEARING LD. COUNSEL ON BEHALF OF THE ASSESSEE FAIRLY CONCEDED THAT IN VIEW OF THE JURISDICTIONAL HIGH COURT ORDER IN THE MATTER OF CIT VS. GUJARAT STATE ROAD TRANSPO RT CORPORATION [2014] 366 ITR 170 (GUJ.):- SECTION 43B, READ WITH SECTION 36(1)(VA) OF THE IN COME-TAX ACT, 1961 - BUSINESS DISALLOWANCE - CERTAIN DEDUCTIONS T O BE ALLOWED ON ACTUAL PAYMENT (EMPLOYEES CONTRIBUTION) - WHETHER W HERE AN EMPLOYER HAS NOT CREDITED SUM RECEIVED BY IT AS EMP LOYEES' CONTRIBUTION TO EMPLOYEES' ACCOUNT IN RELEVANT FUND ON OR BEFORE DUE DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36(1)( VA), ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTION OF SUCH AMOUNT THOUGH HE DEPOSITS SAME BEFORE DUE DATE PRESCRIBED UNDER SECTION 43B I.E., PRIOR TO FILING OF ITA NO.2778/AHD/2017 [PARIKH PACKAGING PVT. LTD. VS. ITO] A.Y. 2013-14 - 3 - RETURN UNDER SECTION 139(1) - HELD, YES - ASSESSEE STATE TRANSPORT CORPORATION COLLECTED A SUM BEING PROVIDENT FUND CO NTRIBUTION FROM ITS EMPLOYEES - HOWEVER, IT HAD DEPOSITED LESSER SU M IN PROVIDENT FUND ACCOUNT - ASSESSING OFFICER DISALLOWED SAME UN DER SECTION 43B - HOWEVER, COMMISSIONER (APPEALS) DELETED DISALLOWA NCE ON GROUND THAT EMPLOYEES CONTRIBUTION WAS DEPOSITED BEFORE FI LING RETURN - WHETHER SINCE ASSESSEE HAD NOT DEPOSITED SAID CONTR IBUTION IN RESPECTIVE FUND ACCOUNT ON DATE AS PRESCRIBED IN EX PLANATION TO SECTION 36(1)(VA), DISALLOWANCE MADE BY ASSESSING O FFICER WAS JUST AND PROPER - HELD, YES [PARA 8] [IN FAVOUR OF REVEN UE] IN THAT VIEW THIS MATTER IS AGAINST THE ASSESSEE. WE AGREE WITH THE FINDINGS OF THE LOWER AUTHORITIES AND WE A FFIRM OPINION OF THE LOWER AUTHORITIES THAT THIS MATTER IS SQUARELY COVERED BY THE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF C IT VS. GSRTC (SUPRA). THUS, WE DISMISS THE APPEAL OF THE ASSESS EE. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE DIS MISSED. SD/- SD/- (WASEEM AHMED) (MAHA VIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 18/11/2019 TANMAY TRUE COPY !' #' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. ) *+ , / CONCERNED CIT 4. ,- / CIT (A) 5. 012 33*+, *+#, 56$)$ / DR, ITAT, AHMEDABAD 6. 289 : / GUARD FILE. BY ORDER / $% , ;/5 *+#, 56$)$ < THIS ORDER PRONOUNCED IN OPEN COURT ON 18/11/2019