Marudhar Industries Limited, Ahmedabad V. The Dy.CIT, Circle-2(1)(2), Ahmedabad

ITA 2921/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5939 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 19-10-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Section: 43B; 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MARUDHAR INDUSTRIES LTD, 610 - 611, GIDC, PHASE - IV, VATVA, AHMEDABAD PAN: AABCM4070C (APPELLANT) VS THE DCIT, CIRCLE - 2(1)(2), AHMEDABAD PIN - 380015 (RESPONDENT) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSEE BY: S H RI P.D. SHAH , A.R. DATE OF HEARING : 23 - 01 - 2 018 DATE OF PRONOUNCEMENT : 07 - 03 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S AP PEAL FOR A.Y. 2012 - 13 , ARIS ES FROM ORDER OF THE CIT(A) - 2 , AHM EDABAD DATED 14 - 08 - 2015 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE DISALLOWANCE U/S 14A READ WITH RULE 8D OF THE INCOME TAX RULES,1961 OF RS.5,900/ - AND THEREFORE THE LEARNED AO SHOULD BE DIRECTED TO ALLOW NOT TO DISALLOW RS.5,900/ - , WHILE COMPUTING THE TOTAL INCOME. 2 . THAT THE CIT(A) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE ADDITION U/S 36(1 )(VA) R.W. SUB CLAUSE(X) OF CLAUSE 24 OF SECTION 2 OF THE INCOME TAX ACT OF I T A NO . 2921 / A HD/20 15 A SSE SSM ENT YEAR 2012 - 13 I.T.A NO. 2921 /AHD/20 15 A.Y. 2012 - 13 PAGE NO MARUDHAR INDUSTRIES LTD. VS. DCIT 2 RS.5,33,732/ - AND THEREFORE THE LEARNED AO SHOULD BE DIRECTED TO DELETE THE ADDITION OF RS. 5,33, 7327 - , WHILE COMPUTING THE TOTAL INCOME. 3. AT THE TIME OF HEARING, LEARNED COUNSEL HAS NOT PRESS E D GROUND NO. 1 OF APPEAL, THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. GROUND NO. 2 OF THE APPEAL 4 . ON SCRUTINY, THE ASSES SING OFFICER NOTICED THAT ASSESSEE HAS NOT DEPOSITED CONTRIBUTION OF EMPLOYEES CONTRIBUTION TO PF & ESIC ACCORDING TO THE DATE STIPULATED IN THE ACT. THE DETAIL APPEARING AS PER PARA 4 OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER : - EMPLOYEES CONTR IBUTION TO PF UNITS MONTH CONTRIBUTION DUE DATE PAYMENT DATE UNIT I APR - 1 1 123127 20/05/2011 23/05/201 1 UNIT - II APR - 11 53232 20/05/201 1 23/05/2011 MAY - 1 1 53265 20/06/201 1 21/06/2011 JUN - 11 57682 20/07/201 1 26/07/201 1 SEP - 11 61393 20/10/2011 31/10/2011 OCT - 11 57908 20/11/2011 26/11/2011 UNIT - ILL MAR - 12 55943 20/04/2012 21/04/2012 AUG - 11 4494 20/09/2011 7/10/2011 SEP - 11 4851 20/10/2011 26/11/2011 OCT - 11 4456 20/11/2011 26/11/2011 MAR - 12 3583 20/04/2012 21/04/2012 | TOTAL 479934 EMPLOYEES CONTRIBUTION TO ESIC MONTH CONTRIBUTION DUE DATE PAYMENT DATE UNIT - L APR - 1 1 17682 21/05/2011 23/05/2011 JUN - 1 1 16791 21/07/2011 22/07/2011 UNI T - LL APR - 1 1 8034 21/05/2011 23/05/2011 I.T.A NO. 2921 /AHD/20 15 A.Y. 2012 - 13 PAGE NO MARUDHAR INDUSTRIES LTD. VS. DCIT 3 SEP - 11 9263 21/10/2011 31/10/2011 UNIT - ILL AUG - 11 659 21/09/2011 16/12/2011 SEP - 11 713 21/10/2011 16/12/201 1 OCT - 1 1 656 21/11/2011 16/12/2011 TOTAL 53798 T HE ASSESSING OFFICER CONCLUDE D THAT PAYMENT OF EMPLOYEE S CONTRIBUTION TO PF AMOUNTING TO RS. 4 , 79 , 934/ - AND ESIC AMOUNTING TO RS . 53 , 798/ - WERE MADE AFTER DUE DATE . THE ASSESSING OFFICER HAS ALSO MADE RELIANCE ON THE DECISION OF HON BLE HIGH COURT IN THE CASE OF CIT VS. GSRTC TAX APPEAL NO. 637 OF 2013. CONSEQUENTLY THE ASSE SSING OFFICER HAS DISALLOWED RS.5,33,732/ - U/S 36(1 )(VA) R.W. SUB CLAUSE(X) OF CLAUSE 24 OF SECTION 2 OF THE ACT . 5. AGGRIEVED ASSESSEE FILED APPEAL BEFORE T HE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 4.3. DECISION: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, THE ASSESSMENT ORDER AND THE WRI TTEN SUBMISSION OF THE APPELLANT. THE AO HAS MADE THE DISALLOWANCE ON ACCOUNT OF LATE PAYMENT TOWARDS PF OF RS. 4,79,934/ - & ESI OF RS. 53,7987 - , TOTALLING TO RS.5,33,732/ - . THE ASSESSING OFFICER IN THE ORDER HAS MENTIONED THAT AS PER THE PROVISIONS OF CLA USE (VA) OF SUB SECTION (1) OF 36 OF THE ACT, THE ASSESSEE IS ENTITLED TO DEDUCTION IN RESPECT OF THE SUM REFERRED TO IN SUB CLAUSE (X) OF CLAUSE (24) OF SECTION 2 OF THE ACT IF SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND ON OR BEFORE THE DUE DATE OF RESPECTIVE ACT. THE AO HAS FURTHER RELIED ON THE RECENT JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION [2014] 41 TAXMANN.COM 100 (GUJARAT). 4.4. THE APPELLANT ON THE OTHE R HAND HAS STATED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS AT THE APPELLATE STAGE THAT THE CONTRIBUTION COLLECTED FROM EMPLOYEES TOWARDS PROVIDENT FUND AND EMPLOYEES CONTRIBUTION TO ESI WERE DEPOSITED IN THE FUND AFTER THE DUE DATE MENTIONED IN THE RESPECTIVE ACT. HOWEVER, THE APPELLANT HAS STATED THAT THE SAID AMOUNTS OF THE EMPLOYEES CONTRIBUTION HAS BEEN DULY DEPOSITED BEFORE DUE DATE OF FILING OF FILING OF RETURN OF INCOME MENTIONED IN SECTION 139(1) OF THE I. T. ACT, 1961. THE APPELLANT H AS ALSO RELIED ON SEVERAL JUDICIAL PRONOUNCEMENTS WHICH HAS BEEN MENTIONED IN THE WRITTEN SUBMISSION OF THE APPELLANT. 4.5. IT IS WORTH HERE TO MENTION THAT THE DISALLOWANCE WAS MADE FOR THE REASON THAT EMPLOYEES' CONTRIBUTION TO PF WAS NOT MADE WITHIN TH E DUE DATES SPECIFIED UNDER THE P.P. ACT, THE ADDITION WAS ALSO SUPPORTED BY THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GSRTC IN TAX APPEAL NO. 637 OF 2013. I.T.A NO. 2921 /AHD/20 15 A.Y. 2012 - 13 PAGE NO MARUDHAR INDUSTRIES LTD. VS. DCIT 4 4.6. IT IS WORTH HERE TO MENTION THAT APPELLANT HAS CLAIMED THAT THE PA YMENTS WERE DEPOSITED ON OR BEFORE THE DUE DATES U/S. 139(1) OF THE . T. ACT AND HENCE UNDER THE PROVISIONS OF SECTION 43B OF THE I. T. ACT, SAME COULD NOT BE DISALLOWED. ACCORDINGLY NO ADDITION WAS TO BE MADE. THIS CONTENTION OF THE APPELLANT HAS BEEN E XAMINED, BUT THE SAME IS FOUND NOT CORRECT FOR THE REASON THAT THE DATES OF PAYMENTS ARE BEYOND THE PERIOD OF P.P. AND E.S.I ACTS. HENCE, THE DELAYED PAYMENTS ARE TO BE TREATED IN THE INCOME UNDER SECTION 2(24) (X) R.W.S. 36(1 )(VA) OF THE I. T. ACT. 4.7. IN VIEW OF THE ABOVE FACTS OF THE CASE, AND CONSIDERING THE RECENT JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION [2014] 41 TAXMANN.COM 100 (GUJARAT), THE GROUND OF APPEAL IS DISMISSED. 6. DURING THE CO URSE OF APPELLATE PROCEEDINGS BEFORE US, LD. COUNSEL HAS CONTENDED THAT THE DUE DATE FOR PAYMENT OF EMPLOYEES CONTRIBUTION TO PF AND ESIC IS TO BE TAKEN FROM THE MONTH OF PAYMENT OF SALARY INSTEAD OF MONTH IN WHICH THE SALARY WAS DUE. THE DETAIL SUBMITTE D BEFORE US BY THE LD. COUNSEL IS REPRODUCED AS UNDER: - EMPLOYEES' CONTRIBUTION TO P.F. UNIT SALARY DUE MONTH MONTH OF PAYMENT OF SALARY COMPANY'S CONTRIBUTION DUE DATE ACTUAL PAYMENT DATE UNIT - I APRIL, 2011 MAY, 20 11 123127 20.06.2011 23.05.2011 UNIT - 11 APRIL, 2011 MAY,2011 53232 20.06.2011 23.05.2011 MAY, 2011 JUNE, 2011 53265 20.07.2011 21.06.2011 JUNE,2011 JULY, 2011 57682 20.08.2011 26.07.2011 SEPTEMBER, 2011 OCTOBER, 201 1 61393 20.11.2011 31.10.2011 OCTOBER. 201 1 NOVEMBER,2 011 57908 20.12.2011 26.11.2011 MARCH, 2012 APRIL, 2012 55943 20.05.2012 21.04.2012 UNIT - ILL AUGUST, 2011 SEPTEMBER, 2011 4494 20.10.2011 07.10.2011 OCTOBER, 2011 NOVEMBE R,2 0 1 1 4456 20.12.2011 26.11.2011 MARCH, 2012 APRIL, 20 12 3583 20.05.2012 21.04.2012 TOTAL (A) 475083 EMPLOYEES' CONTRIBUTION TO ESIC I.T.A NO. 2921 /AHD/20 15 A.Y. 2012 - 13 PAGE NO MARUDHAR INDUSTRIES LTD. VS. DCIT 5 UNIT - I APRIL, 201 1 MAY, 2011 17682 21.06.2011 23.05.2011 JUNE, 2011 JULY, 2011 16 791 21.08.2011 22.07.2011 UNIT - 11 APRIL,2011 MAY, 201 1 8034 21.06.2011 23.05.2011 SEPTEMBER, 20 1 1 OCTOBER, 2011 9263 21.11.2011 31.10.2011 UNIT - 111 OCTOBER, 2011 NOVEMBER. 201 1 656 21.12.2011 16.12.2011 TOTAL(B) 52429 TOTAL (A+B) 527512 7. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE CIT(A). THE LD. COUNSEL HAS ALSO PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH IN T H E C ASE OF RAJJRATNA METAL INDUSTRIES LTD. VS. ADDL. CIT VIDE ITA 940/AHD/2015 DATED 22/09/2017. 8. AFTER HEARING BOTH THE SIDES AND PERUSAL OF MATERIAL ON RECORD, WE NOTICE THAT CO - ORDINATE BENCH OF THE ITAT VIDE AFORESAID SAID ORDER ON IDENTICAL FACTS HELD THAT THE RELEVANT DATE IN SUCH CASE IS DAT E OF MONTH OF ACTUAL PAYMENT OF WAGES/SALARIES. THEREFORE, FOLLOWING THE DECISION OF CO - ORDINATE BENCH OF ITAT , WE ALLOW THE APPEAL ON THIS ISSUE . 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PR ONOUNCED IN THE O PEN C OURT ON 07 - 03 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 07 /03 /2018 I.T.A NO. 2921 /AHD/20 15 A.Y. 2012 - 13 PAGE NO MARUDHAR INDUSTRIES LTD. VS. DCIT 6 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,