TUV SUD SOUTH ASIA PVT. LTD, MUMBAI V. COMMISSOINER OF INCOME TAX APPEALS , MUMBAI

ITA 282/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8916 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2018-2019
• Appeal Filed On: 10-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NIRAJ AGARWAL.
• Section: 43B; 143(3); 143(1); 250; 143(2); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA No. 282/Mum/2022 (A.Y: 2018-19) Tuv Sud South Asia Pvt Ltd., 1 Tuv House, Off Saki Vihar Road, Sakinaka, Andheri(E), Mumbai – 400072. Vs. CIT(A) NFAC, 245-A, North Block, New Delhi-110001. ./ज आइआर ./PAN/GIR No. : AABCT0716G Appellant .. Respondent Appellant by : Shri Niraj Agarwal.AR. Respondent by : None Date of Hearing 20.06.2022 Date of Pronouncement 21.06.2022 आद श / O R D E R PER PAVAN KUMAR GADALE JM: The assessee has filed the appeal against the order National Faceless Appeal Centre (NFAC), New Delhi passed u/s 143(1) and 250 of the Income Tax Act, 1961. The assessee has raised the following grounds of appeal. 1. On the facts and circumstances of the case, the Ld. CPC/AO/CIT(A) has erred in law as simultaneous proceedings under the provisions of Sec. 143(2) and issuance of intimation u/s 143(1) are not permissible as per the provisions of the Act. ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 2 - 2. On the facts and circumstances of the case, the Ld. CPC/AO/CIT(A) has erred in law by not following the doctrine of merger i.e once the assessment order is passed u/s 143(3) of the Act, it overrides the order passed u/s 143(1) of the Act. 2. The brief facts of the case are that the assessee company is engaged in business as a leading quality certification, inspection and testing company in India. The assessee has filed the return of income for the A.Y 2018-19 on 30.11.2019 disclosing a total income of Rs.20,62,05,830/-. The return of income was processed u/s 143(1) and the intimation dated 22.11.2019 was received through e-mail where the employee contribution of provident fund (PF) aggregating to Rs.35,99,592/- was disallowed u/s 36(1)(va) of the Act due to delay in deposit of PF under the respective Act and the total income was determined at Rs.20,98,05,420/-. 3. Aggrieved by the intimation, the assessee has filed an appeal before the CIT(A),whereas the CIT(A) has confirmed the addition in respect of the belated deposits of PF contributions and dismissed the appeal. Aggrieved by the CIT(A)order, the assessee has filed an appeal before the Hon’ble Tribunal. ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 3 - 4. At the time of hearing, the Ld. AR of the assessee submitted that the CIT(A) has not considered the facts, law and the asseessee is governed by the law applicable to said assessment year. Whereas the amended provisions/explanations are with effect from F.Y 1-4-2021.The Ld.AR relied on the judicial decisions and prayed for allowing the appeal. 5. The revenue submitted that the explanation 2 to Sec 36(1)(va) of the Act in finance Act 2021 was introduced and the amendment is applicable to the earlier years and supported the order of the CIT(A) appeal. 6. We heard the rival submissions and perused the material available on record. The contentions of the Ld.AR are that the assessee is governed by the law applicable to said Assessment year. Whereas the amended provisions/explanations are w.e.f F.Y 1-4- 2021.The assessee for the various reasons could not deposit the employees contribution to provident fund within the time allowed under prescribed Act. Whereas, the assessee has deposited the amount before filing of the return of income U/sec 139(1) of ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 4 - the Act. Whereas the Ld.CIT(A) has referred at page 15 of the order, on the delay in depositing the employees contribution to provident fund aggregating to Rs35,99,592/-.The assessee has complied with the provisions of Law and deposited the contributions before the due date of filling the Return of income U/sec139(1) of the Act which cannot be disputed. The fact remains that the provisions/explanation was introduced in the Finance Act 2021 which is effective from 1-4-2021. 7. We considering the overall facts, circumstances and the submissions find on the similar issue, the Co- ordinate Bench of this Hon’ble Tribunal in M/s Kalpesh Synthetics Pvt Ltd Vs DCIT. Cpc in ITA no 1785/Mum/2021.A.Y2018-19 order dated 27.04.2022 has considered the facts, provisions of law on the section 143(1) and sec36(1)(Va) of the Act and allowed the appeal and observed at Page10 Para 9 &10 which is read as under: 9 what a tax auditor states in his report are his opinion and his opinion cannot bind the auditee at all. In this light, when one considers what has been reported to be ‘due date’ in column 20 (b) in respect of contributions received from ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 5 - employees for various funds as referred to in Section 36(1)(va) and the fact that the expression ‘due date’ has been defined under Explanation (now Explanation 1) to Section 36(1)(va) provides that “ For the purposes of this clause, ‘due date’ means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued thereunder or under any standing order, award, contract of service or otherwise”, one cannot find fault in what has been reported in the tax audit report. It is not even an expression of opinion about the allowability of deduction or otherwise; it is just a factual report about the fact of payments and the fact of the due date as per the Explanation to Section 36(1)(va). This due date, however, has not been found to be decisive in the light of the law laid down by Hon'ble Courts above, and it cannot, therefore, be said that the reporting of payment beyond this due date in the tax audit report constituted “disallowance of expenditure indicated in the audit report but not taking into account in the computation of total income in the return” as is sine qua non for disallowance of Section 143(1)(a)(iv). When the due date under Explanation to Section 36(1)(va) is judicially held to be not decisive for determining the disallowance in the computation of total income, there is no good reason to proceed on the basis that the payments having been made after this due date is “indicative” of the disallowance of expenditure in question. While preparing the tax audit report, the auditor is expected to report the information as per the provisions of the Act, and the tax auditor has done that, but that information ceases to be relevant because, in terms of the law laid down by Hon’ble Courts, which binds all of us as much as the enacted legislation does, the said disallowance does not come into play when the payment is made well before the due date of filing the income tax return under section 139(1). Viewed thus also, the impugned adjustment is vitiated in law, and we must delete the same for this short reason as well. ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 6 - 10. In view of the detailed discussions above, we are of the considered view that the impugned adjustment in the course of processing of return under section 143(1) is vitiated in law, and we delete the same. As we hold so, we make it clear that our observations remain confined to the peculiar facts before us, that our adjudication is confined to the limited scope of adjustments which can be carried out under section 143(1) and that we see no need to deal with the question, which is rather academic in the present context, as to whether if such an adjustment was to be permissible in the scheme of Section 143(1), whether the insertion of Explanation 2 to Section 36(1)(va), with effect from 1 st April 2021, must mean that so far as the assessment years prior to the assessment years 2021-22 are concerned, the provisions of Section 43B cannot be applied for determining the due date under Explanation (now Explanation 1) to Section 36(1)(va). That question, in our humble understanding, can be relevant, for example, when a call is required to be taken on merits in respect of an assessment under section 143(3) or under section 143(3) r.w.s. 147 of the Act, or when no findings were to be given on the scope of permissible adjustments under section 143(1)(a)(iv). That is not the situation before us. We, therefore, see no need to deal with that aspect of the matter at this stage. 8 . We considering the ratio of judicial decision and the facts emanated in the course of hearing find that the amendment was brought in finance Act 2021 w.e.f 1-4-2021.The law was not framed/amended in the relevant Assessment year and any legal proposition which cast additional burden/liability on the assessee shall be applicable prospectively. We ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 7 - considering the overall facts, circumstances, judicial decisions, are of the reasoned view that the amendment to section 36(1)(va) of the Act will not be applicable to assessment year 2018-19. The assessee has deposited the employee’s contribution of Provident fund before the due date of return of income u/sec 139(1) of the Act. Accordingly, we set- aside the order of the CIT(A) and direct the assessing officer to delete the disallowance and allow the grounds of appeal in favour of the assessee. 9. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 21.06.2022. Sd/- Sd/- ( AMARJIT SINGH) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated 21.06.2022 KRK, PS /Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. आ र आ / The CIT(A) 4. आ र आ ( ) / Concerned CIT ITA No. 282/Mum/2022 Tuv Sud South Asia Pvt Ltd, Mumbai - 8 - 5. "#$ % & &' , आ र ) र*, Mumbai / DR, ITAT, Mumbai 6. % +, - . / Guard file. ान ु सार/ BY ORDER, " & //True Copy// 1. ( Asst. Registrar) ITAT, Mumbai