M/s.Jhaveri Securities Ltd., Baroda V. The Asstt..Commissioner of Income Tax, Baroda

ITA 3117/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6376 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 04-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 28

Judgement Text

ITA NO. 3117/AHD/2015 JHAVERI SECURITIES LTD VS. ACIT ASSESSMENT YEAR : 2012-13 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S S GODARA JM] ITA NO. 3117/AHD/2015 ASSESSMENT YEAR: 2012-13 JHAVERI SECURITIES LTD ............ .APPELLANT 301-302, PAYAL TOWERS-II, SAYAJIGUNJ, BARODA-390 005 [PAN : AOQPM 4008 N] VS. THE ASST. COMMISSIONER OF INCOME-TAX .......................RESPONDENT CIRCLE 1(1)(2), BARODA APPEARANCES BY: MUKUND BAKSHI (WRITTEN SUBMISSION) FOR THE APPELLANT MUDIT NAGPAL FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 01.01.2018 DATE OF PRONOUNCING THE ORDER : 02.01.2018 O R D E R PER PRAMOD KUMAR, AM: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 25 TH AUGUST 2015 PASSED BY THE BY THE CIT(A)-1, VADODAR A, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961, F OR THE ASSESSMENT YEAR 2012-13, ON THE FOLLOWING GROUND:- THE LD. CIT(APPEALS)-1 HAS ERRED IN LAW AND IN FAC TS IN CONFIRMING THE DISALLOWANCE OF RS.1,87,869/- ON ACCOUNT OF LATE PA YMENT OF EMPLOYEES CONTRIBUTION TO PF WITHOUT CONSIDERING THE EXPLANATION OF THE AP PELLANT. THE IMPUGNED ADDITION OF RS.1,87,869/- BEING BAD IN LAW AND CONTRARY TO F ACTS DESERVES TO BE DELETED. 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, OU R ATTENTION WAS INVITED TO THE WRITTEN SUBMISSION FILED BY THE ASSESSEE IN SUPPORT OF THE AFORESAID GRIEVANCE. THIS WRITTEN SUBMISSION READS AS FOLLOWS:- THE APPEAL IS FILED BY THE APPELLANT AGAINST DISAL LOWANCE OF RS.1,87,869/- MADE BY THE LD. AO ON ACCOUNT OF LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF FROM THE APPELLANTS SIDE, THE WRITTEN SUBMISSION MAY KINDLY BE CONSIDERED. ITA NO. 3117/AHD/2015 JHAVERI SECURITIES LTD VS. ACIT ASSESSMENT YEAR : 2012-13 PAGE 2 OF 3 THE LD. CIT(A) HAS CONFIRMED THE DISALLOWANCE FOLLO WING THE JUDGMENT OF THE HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT C ORPORATION (GSRTC) 366 ITR 170 (GUJ). THE APPEAL FILED BY GSRTC IS PRESENTLY PEND ING ADJUDICATION BY THE HONBLE SUPREME COURT. THE APPELLANT RELIES UPON THE RECENT DECISION OF TH E HONBLE RAJASTHAN HIGH COURT IN THE CASE OF PR. CIT VS. RAJASTHAN STATE BEVERAGES C ORPORATION LTD. 84 TAXMANN.COM 173 (RAJ.) WHEREIN THE DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TO PF IS ALLOWED, SINCE THE SAME IS PAID BEFORE THE DUE DATE OF FILIN G THE RETURN OF INCOME. THE SLP FILED AGAINST THIS DECISION BY THE DEPARTMENT HAS B EEN DISMISSED BY THE HONBLE SUPREME COURT IN PR. CIT VS. RAJASTHAN STATE BEVERA GES CORPORATION LTD. (2017) 84 TAXMANN.COM 185 (SC). THE APPELLANT FURTHER RELIES UPON THE ORDERS OF VAR IOUS OTHER COURTS / TRIBUNALS WHICH HAVE HELD IN FAVOUR OF THE ASSESSEE AND FEW OF WHIC H ARE CITED AS BELOW: DCIT VS. EASTERN POWER DISTRIBUTION COMPANY OF AP L TD. 73 TAXMANN.COM 206 (VIZAG) DIALOGIC NETWORK (INDIA) (P) LTD VS. DCIT, 78 TAXMA NN.COM 349 (MUMBAI ITAT) SAGUN FOUNDRY (P) LTD VS. CIT, 78 TAXMANN.COM 47 (A LLAHABAD) HINDUSTAN ORGANIC CHEMICALS LTD, 366 ITR 1 (MUM) ESSAE TERAOKA PVT LTD VS. DCIT, 266 CTR 246 (KAR.) DECIDED IN FAVOUR AFTER CONSIDERING THE HONBLE GUJARAT HIGH COURT ORDER IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION ABOVE. CIT VS. STATE BANK OF BIKANER & JAIPUR, 363 ITR 70 (RAJ.) CONSIDERING THE ABOVE SUBMISSION, YOUR HONOURS ARE PRAYED TO ADJUDICATE THE ISSUE ACCORDINGLY. 3. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, SUBMITS THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY HONBLE JU RISDICTIONAL HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPOR ATION, 366 ITR 170 (GUJ.), WHEREIN IT IS CATEGORICALLY HELD THAT IN THE CASE OF DELAYED DEPO SIT OF EMPLOYEES CONTRIBUTION TO PF, THE SAME WILL NOT BE DEDUCTABLE IN COMPUTING INCOME UND ER SECTION 28 OF THE ACT. THE LAW SO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IS BINDING ON US. THE MERE FACT THAT AN APPEAL AGAINST THE SAID DECISION IS PENDING BEFORE THE HONBLE SUPREME COURT DOES NOT DILUTE BINDING NATURE OF THIS JUDICIAL PRECEDENT. AS REG ARD DISMISSAL OF SLP IN THE CASE OF RAJASTHAN STATE BEVERAGES CORPORATION LTD (SUPRA), IT IS ONLY ELEMENTARY THAT WHEN A SLP IS DISMISSED BY A NON-SPEAKING ORDER, IT DOES NOT CONS TITUTE A LAW DECLARED BY HONBLE SUPREME COURT, AND AS SUCH, IT IS NOT BINDING UNDER ARTICLE 141 OF THE CONSTITUTION OF INDIA. THE AUTHORITY, FOR THIS PROPOSITION, IS CONTAINED IN A SERIES OF JUDGMENTS OF HONBLE SUPREME COURT, INCLUDING, INTER ALIA, IN THE CASES OF STATE OF MANIPUR VS. THINGUJAMBROJE NMEETAI, (1996) 9 SCC 29; OM PRAKASH GARGI V. STATE OF PUNJA B, (1996) 11 SCC 399 AND SUN EXPORT CORPN V. COLLECTOR OF CUSTOMS, AIR 1997 SC 2658. AS REGARDS THE DECISIONS OF HONBLE NON-JURISDICTIONAL HIGH COURT AND OF CO-ORDINATE BE NCHES, THESE DECISIONS CANNOT HAVE ANY PRECEDENT OVER THE VIEWS EXPRESSED BY THE HONBLE J URISDICTIONAL HIGH COURT, WHICH ARE ITA NO. 3117/AHD/2015 JHAVERI SECURITIES LTD VS. ACIT ASSESSMENT YEAR : 2012-13 PAGE 3 OF 3 AGAINST THE ASSESSEE. WE, THEREFORE, SEE NO LEGALL Y SUSTAINABLE MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND, RESPECTFULLY FOLLOWING THE JUDGMENT O F HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION (S UPRA), DISMISS THE GRIEVANCE OF THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 2 ND DAY OF JANUARY, 2018. SD/- SD/- S S GODARA PRAMOD K UMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 2 ND DAY OF JANUARY, 2018 *BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ......COVERED MATTER, TAX EFFEC T LESS THAN 10 LACS 01.01.2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER: 01.01.2018...... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.: .. 02.01.2018...... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT: ... 02.01.2018. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . . 02.01.2018.................... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER: .. 8. DATE OF DESPATCH OF THE ORDER: ......