Bhumishree Consultancy & Marketing Pvt. Ltd., Bhubaneswar V. ITO, Ward-1(1), Bhubaneswar

ITA 286/CTK/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3452 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DUTTA
• Section: 43B

Judgement Text

P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ITA NO. 286 /CTK/201 8 ASSESSMENT YEAR : 2014 - 15 BHUMISHREE CONSULTANCY & MARKETING PVT LTD., 725 - P, KARTIK PALACE LANE 6, B M NAGAR, GANDAMUNDA, BHUBANESWAR. VS. ITO, WARD 1(1), BHUBANESWAR. PAN/GIR NO. AADCB 6540 L (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI NATABAR PANDA, AR REVENUE BY : SHRI A.K.DUTTA, DR DATE OF HEARING : 2 2 / 0 2 / 201 9 DATE OF PRONOUNCEMENT : 2 2 / 0 2 / 201 9 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 1, BHUBANESWAR D ATED 20.4.2018 FOR THE ASSESSMENT YEAR 201 4 - 15. 2. GROUND NOS.1 & 4 OF APPEAL ARE GENERAL IN NATURE AND HENCE, REQUIRES NO SEPARATION ADJUDICATION BY ME. 3. IN GROUND NO . 2 & 3, THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.16,66,206/ - TOWARDS EMPLOYEES CONTRIBUTION AND ESIC MADE BY THE ASSESSING OFFICER. P A G E 2 | 4 4. THE ASSESSING OFFICER HAS DISALLOWED RS.16,66,206/ - U/S.36(1)(V A) R.W.S. 2(24)(X) OF THE ACT ON ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS EPF AND ESIC NOT DEPOSITED WITHIN THE DUE DATE, WHICH WAS CONFIRMED IN APPEAL BY THE CIT(A). 5. BEFORE ME, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS COVERED BY THE VAR IOUS ORDERS OF HONBLE HIGH COURTS AND THE TRIBUNAL INCLUDING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF M/S. ESSAE TERAOKA PVT LTD. VS. DCIT IN ITA NO.480/2013 ORDER DATED 4 TH FEBRUARY, 2014 AND ORDER OF THE CUTTACK BENCH OF THE TRIBUNAL IN THE CASE OF M/S. KALINGA INSTITUTE OF TRAINING VS ITO IN ITA NOS.435 & 436/CTK/2017 FOR THE ASSESSMENT YEAR 2011 - 12 AND 2012 - 13 ORDER DATED 28.12.2017. 6. REPLYING TO ABOVE, LD D.R. STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND PLACED RELIA NCE ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION, 366 ITR 170 (GUJ). 7. ON A CAREFUL CONSIDERATION OF ABOVE SUBMISSION OF BOTH THE PARTIES, I AM OF THE CONSIDERED OPINION THAT THERE ARE CONTRARY DECISIONS OF VARIOUS HONBLE HIGH COURTS ON THIS ISSUE. HOWEVER, THE JUDGMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF RAJASTH AN BEVERAGE CORPORATION LTD HOLDS GOOD AS THE SLP FILED BY P A G E 3 | 4 THE DEPARTMENT HAS BEEN DISMISSED BY HONBLE SUPREME IN THE CASE OF PR. CIT VS RAJASTHAN BEVERAGE CORPORATION LTD., (2017) 84 TAXMAN. COM 185 (SC), WHEREIN, IT HAS BEEN HELD AS UNDER: SECTION 4 3B, READ WITH SECTION 36(1)(VA), OF THE INCOME TAX ACT, 1961 - BUSINESS DISALLOWANCE - CERTAIN DEDUCTION TO BE ALLOWED ONLY ON `ACTUAL PAYMENT (PF & ESI CONSTRUCTION) - HIGH COURT BY THE IMPUGNED ORDER HELD THAT AMOUNT CLAIMED ON PAYMENT OF PF AND ESI HAVING BE EN DEPOSITED ON OR BEFORE DUE DATE OF FILING OF RETURNS, SAME COULD NOT BE DISALLOWED UNDER SECTION 43B OR UNDER SECTION 36(1)(VA) - WHETHER SLP AGAINST SAID IMPUGNED ORDER WAS TO BE DISMISSED - HELD YES (PARA 2) IN FAVOUR OF ASSESSEE. 8. REVE RTING TO THE FAC TS OF THE PRESENT CASE, LD D.R. HAS ALLEGED THAT THE ASSESSEE DID NOT DEPOSIT THE EPF AND ESIC CONTRIBUTION WITHIN THE DUE DATE AND THE SAME WAS DEPOSITED AFTER THE PRESCRIBED DUE DATE. THEREFORE, THE ASSESSING OFFICER WAS RIGHT IN MAKING THE ADDITION AN D THE CIT(A) WAS CORRECT IN UPHOLDING THE SAME. 9. HOWEVER, IN ALL FAIRNESS, LD D.R. DID NOT DISPUTE THE FACT FOR ASSESSMENT YEAR 2014 - 15, THE DATE OF FILING OF RETURN WAS 30.11.2014 AND THE IMPUGNED DEPOSIT OF EPF/ESIC CONTRIBUTIONS HAVE BEEN MADE BY THE ASSESSEE PRIOR TO FILING OF RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. 10. CONSIDERING THE ABOVE FACTS, I AM OF THE CONSIDERED VIEW THAT THE RATIO OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE P A G E 4 | 4 OF RAJASTHAN BEVERAGE CORPORATION LTD., (SUPRA), IS APPLICABLE TO THE PRESENT CASE, WHICH IS IN FAVOUR OF THE ASSESSEE. THER EFORE, FOLLOWING THE SAME, I DELETE THE ADDITION OF RS.16,66,206/ - BEING EPF AND ESIC CONTRIBUTION AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE. 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED ON 22 / 0 2 /201 9 . S D/ - ( CHANDRA MOHAN GARG ) JUDICIALMEMBER CUTTACK; DATED 22 / 0 2 /20 9 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : BHUMISHREE CONSULTANCY & MARKETING PVT LTD., 725 - P, KARTIK PALACE LANE 6, B M NAGAR, GANDAMUNDA, BHUBANESWAR. 2. THE RESPONDENT. ITO, WARD 1(1), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//