C. Doctor India Pvt. Ltd., Ahmedabad V. The Dy. CIT, Circle-1(1)(2), Ahmedabad

ITA 2834/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9870 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-01-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 13-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Condonation of delay
• Section: 139(1); 13

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI RAJPAL YADAV, HONBLE JUDICIAL MEMBER AND SHRI WASEEM AHMED HONBLE ACCOUNTANT MEMBER ITA NO.2834/AHD/2017 / ASSTT. YEAR: 2014-2015 C. DOTOR INDIA P.LTD. PLOT NO.3607 TO 3608, GIDC ESTATE PHASE-IV, VATVA AHMEDABAD 382 445 PAN : AAACI 3673 A VS. DCIT, CIR.1(1)(2) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : NONE REVENUE BY : SHRI L.P.JAIN, SR.DR / DATE OF HEARING : 06/01/2020 / DATE OF PRONOUNCEMENT: 06/01/2020 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD.CIT(A)-1, AHMEDABAD DATED 28.9.2017 PASSED FOR THE ASSTT.YEAR 2014-15. 2. REGISTRY HAS POINTED OUT THAT APPEAL OF THE ASSE SSEE IS TIME BARRED BY ONE DAY. THIS FACT WAS INTIMATED TO THE ASSESSEE I N THE ACKNOWLEDGEMENT- CUM-RECEIPT ISSUED TO IT AT THE TIME OF PRESENTATIO N OF APPEAL. THE ASSESSEE HAS NEITHER FILED AN APPLICATION FOR CONDONATION OF DELAY NOR REMOVED OBJECTION. APART FROM THE ABOVE, IT IS PERTINENT T O OBSERVE THAT THIS APPEAL WAS LISTED ON 16.9.219, AND APPLICATION FOR ADJOURNMENT WAS FILED ON BEHALF OF THE ASSESSEE. HEARING WAS ADJOURNED TO 1.11.2019. BUT THEREAFTER NO ONE ITA NO.2834/AHD/2017 2 APPEARED ON BEHALF OF THE ASSESSEE. NOTICE FOR TOD AYS HEARING WAS SERVED THROUGH REGISTERED POST, BUT NO-ONE HAS APPEARED. 3. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE T HROUGH THE RECORD CAREFULLY. AS IT EMERGES OUT FROM THE RECORD, GRIE VANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING DISALLOWANCE OF RS.6,66,880/-WHICH WAS DISALLOWED BY THE AO ON THE GROUND THAT CONTRIB UTION TO PF AND ESI RECEIVED FROM THE EMPLOYEES WAS NOT DEPOSITED WITH CONCERNED ACCOUNTS WITHIN TIME PERIOD PROVIDED IN THOSE ACTS. THE LD. CIT(A) HAS CONFIRMED THE DISALLOWANCE BY RECORDING THE FOLLOWING FINDING: 2.3 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT OR DER AND THE SUBMISSION FILED BY THE APPELLANT. THE ASSESSING OF FICER HAS OBSERVED THAT APPELLANT HAS FAILED TO DEPOSIT EMPLOYEES CONT RIBUTION TO PROVIDENT FUND BEFORE DUE DATE PRESCRIBED UNDER RELEVANT PROV ISIONS OF THE SAID ACTS HENCE HE RELIED UPON PROVISIONS OF SECTION 36( 1 )(VA) R.W.S 2(24)(X) AND DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF STATE ROAD TRANSPORT CORPORATION AND MADE DISALLOWA NCE OF RS 6,66,8807-. ON THE OTHER HAND, APPELLANT HAS ARGUED THAT APPELLANT HAS PAID THE ENTIRE AMOUNT OF EMPLOYEE'S CONTRIBUTION T O PROVIDENT FUND AND ESIC BEFORE THE DUE DATE FOR FILLING THE RETURN OF INCOME U/S. 139(1) OF THE I.T. ACT. ON CAREFUL CONSIDERATION OF OBSERVATION OF ASSESSIN G OFFICER AND CONTENTION OF APPELLANT, I OBSERVE THAT ENTIRE ISSU E IS COVERED AGAINST APPELLANT BY DECISION OF HON'BLE GUJARAT HIGH COURT IN CASE OF STATE ROAD TRANSPORT CORPORATION (366 ITR 170) WHEREIN IT IS HELD AS UNDER: 'SECTION 43B, READ WITH SECTION 36(1 )(VA) OF THE I NCOME-TAX ACT, 1961 - BUSINESS DISALLOWANCE - CERTAIN DEDUCTIONS T O BE ALLOWED ON ACTUAL PAYMENT (EMPLOYEES CONTRIBUTION) - WHETHE R WHERE 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 S ECTION 438 I.E., PRIOR TO FILING OF RETURN UNDER SECTION 139(1 ) - HELD, YES - ASSESSEE STATE TRANSPORT CORPORATION COLLECTED A SU M BEING PROVIDENT FUND CONTRIBUTION FROM ITS EMPLOYEES - HO WEVER, IT HAD ITA NO.2834/AHD/2017 3 DEPOSITED LESSER SUM IN PROVIDENT FUND ACCOUNT -ASS ESSING OFFICER DISALLOWED SAME UNDER SECTION 436 - HOWEVER , COMMISSIONER (APPEALS) DELETED DISALLOWANCE ON GROU ND THAT EMPLOYEES CONTRIBUTION WAS DEPOSITED BEFORE FILING 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 REVENUE]. CONSIDERING THE ABOVE DECISION OF HON'BLE JURISDICT IONAL HIGH COURT IN THE CASE OF STATE ROAD TRANSPORT CORPORATION (366 I TR 170) ADDITION MADE BY ASSESSING OFFICER IS UPHELD. IT IS PERTINEN T TO NOTE THAT APPELLANT HAS TAKEN NEW PLEA BEFORE UNDERSIGNED THA T DUE DATE FOR PAYMENT OF PROVIDENT FUND IS REQUIRED TO BE COMPUTE D FROM THE PAYMENT OF SALARY AND NOT FROM THE CLOSE OF THE MON TH TO WHICH SALARY PERTAINS. HOWEVER, APPELLANT HAS NOT RAISED THIS CO NTENTION BEFORE ASSESSING OFFICER NOR PROVIDED RELATING TO SUCH PLE A BEFORE ASSESSING OFFICER HENCE THIS ARGUMENT OF APPELLANT /S NOT ACC EPTED. IN THE NUTSHELL, THE DISALLOWANCE MADE BY ASSESSING OFFICE R FOR RS.6,66,880/- IS UPHELD IN VIEW OF THE DECISION OF HON'BLE JURISD ICTIONAL HIGH COURT IN THE CASE OF STATE ROAD TRANSPORT CORPORATION (366 I TR 170). THIS GROUND OF APPEAL IS DISMISSED. 4. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CITED 13 JUDGMENTS FROM DIFFERENT HIGH COURTS AS WELL AS FROM THE HONBLE S UPREME COURT WHEREBY SLPS OF THOSE JUDGMENTS OF HONBLE HIGH COURTS HAVE BEEN DISMISSED. THESE VERY JUDGMENTS HAVE BEEN CITED BY THE ASSESSEE IN I TS WRITTEN SUBMISSIONS FILED BEFORE THE LD.CIT(A), AND THEY HAVE BEEN DULY NOTED BY THE LD.CIT(A). THE LD.CIT(A) HAS CONSIDERED ALL THESE ASPECTS, AND THEREAFTER PUTTING RELIANCE UPON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF STATE ROAD TRANSPORTATION CORPORATION, 366 ITR 170, DISAL LOWED THE CLAIM OF THE ASSESSEE. A PERUSAL OF ORDER OF THE CIT(A) WOULD I NDICATE THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY DECISION O F THE HONBLE JURISDICTIONAL HIGH COURT CITED (SUPRA), AND PROBABLY FOR THAT MAY BE REASON, THE ASSESSEE IS NOT SHOWING ANY INTEREST IN PROSECUTING ITS APPEAL. CONSIDERING THE ABOVE ITA NO.2834/AHD/2017 4 FACTS, WE FIND NO ERROR IN THE ORDER OF THE LD.CIT( A). ACCORDINGLY, THE APPEAL IS DISMISSED EX PARTE QUA THE ASSESSEE ON MERIT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 6 TH JANUARY, 2020 AT AHMEDABAD. SD/- SD/- (WASEEM AHMED ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER