Nisarg Enterprise Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-3(1)(1), Ahmedabad

ITA 3131/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8253 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 29-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NISHIT SHAH

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.3131/AHD/2016 / ASSTT. YEAR: 2013-14 NISARG ENTERPRISE P.LTD. 3601/3602, GIDC PHASE IV TRIKAMPURA, AHMEDABAD. PAN : AAACN 8527 E VS. THE CIT(A)-9 AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI NISHIT SHAH, AR REVENUE BY : SHRI JAMES KURIAN, SR.DR ! / DATE OF HEARING : 25/04/2018 '#$ ! / DATE OF PRONOUNCEMENT: 10/05/2018 %& / O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-9, AHMEDABAD PASSED FOR THE ASSTT.YEAR 20 13-14. 2. ISSUE RAISED IN GROUND NO.1 AND 2 IS THAT THE LD .CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.2,42,990/- UNDER SECTI ON 36(I)(VA) R.W.S. 2(24)(X) OF THE ACT DUE TO DELAYED PAYMENT OF ESI R ECEIVED FROM THE EMPLOYEES. 3. IN THE RETURN OF INCOME FILED BY THE ASSESSEE-CO MPANY FOR THE ASSTT.YEAR 2013-14, THE ASSESSEE HAS CLAIMED DEDUCT ION OF EMPLOYEES CONTRIBUTION OF RS.2,42,990/- UNDER THE EMPLOYEES STATE INSURANCE ACT. THIS CONTRIBUTION OF THE ASSESSEE WAS TO BE DE POSITED FOR THE CREDIT OF THE CONCERNED EMPLOYEES WITH GOVERNMENT UNDER TH E RELEVANT FUND ON OR BEFORE THE DUE DATE PRESCRIBED UNDER SECTION 36(1)(VA) OF THE ACT. HOWEVER, THE AO NOTICED THAT THE ASSESSEE HAS DEPOS ITED THE SUM AFTER ITA NO.3131/AHD/2016 2 THE PRESCRIBED DUE DATE. THE AO ISSUED A SHOW CAU SE NOTICE TO EXPLAIN AS TO WHY DELAYED PAYMENT OF ESI CONTRIBUTION SHOUL D NOT BE DISALLOWED. THE ASSESSEE EXPLAINED THAT DUE TO CERT AIN GLITCHES IN ONLINE SYSTEM, CHALLAN COULD NOT BE GENERATED IN TIME, AND THEREFORE, THE DELAY WAS OCCURRED. THIS CONTENTION OF THE ASSESSE E WAS REJECTED BY THE AO ON THE GROUND THAT THE SAID SUM HAS TO BE DE POSITED IN THE CREDIT OF EMPLOYEES WITHIN THE DUE DATE STIPULATE D IN RELEVANT ACT AND NOT BEFORE DUE DATE OF FILING OF RETURN, AND THEREF ORE, THE AO TREATED THE SAME AS INCOME OF THE ASSESSEE AND ADDED TO ITS TOT AL INCOME. THIS ACTION OF THE AO WAS CONFIRMED BY THE LD.CIT(A). 4. BEFORE ME, THE LD.COUNSEL FOR THE ASSESSEE REITE RATED CONTENTIONS AS WERE MADE BEFORE THE REVENUE AUTHORITIES, WHEREA S THE LD.DR RELIED UPON ORDER OF REVENUE AUTHORITIES. 5. I HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THR OUGH THE RECORD. THE AO HAS DISALLOWED DEDUCTION OF ESI PF CONTRIBUT ION UNDER SECTION 36(1)(VA) OF THE INCOME TAX ACT, 1961. THE LD.CIT( A) HAS UPHELD THE DISALLOWANCE BY FOLLOWING DECISION OF THE HONBLE G UJARAT HIGH COURT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORTATI ON CORPORATION (SUPRA). THE LD.COUNSEL FOR THE ASSESSEE DID NOT D ISPUTE ABOUT PROPOSITION THAT THE HONBLE GUJARAT HIGH COURT HAS DECIDED THIS ISSUE AGAINST THE ASSESSEE. CONSIDERING THE HONBLE HI GH COURTS JUDGMENT, IF SOCIAL WELFARE FUND LIKE ESI CONTRIBUTIONS ARE N OT DEPOSITED WITHIN TIME LIMIT PROVIDED IN THE RELEVANT ACTS, THEN DEDUCTION WILL NOT BE ADMISSIBLE TO THE ASSESSEE. I FIND THAT THE REVENUE AUTHORITI ES HAVE CONSIDERED THIS ASPECTS IN DETAIL, AND DO NOT CALL FOR ANY INT ERFERENCE IN THEIR ORDERS. ACCORDINGLY I REJECT THESE TWO GROUNDS OF A PPEAL. 6. SO FAR AS GROUND NO.3 REGARDING CHARGING OF INTE REST UNDER SECTION 234D IS CONCERNED, WE DO NOT FIND ANY MERIT IN THIS GROUND, BECAUSE SECTION 234D IS A MANDATORY PROVISION, BY WHICH ASS ESSEE IS LIABLE TO ITA NO.3131/AHD/2016 3 PAY INTEREST ON THE EXCESS REFUND RECEIVED BY THE A SSESSEE, IF ANY, FROM THE DEPARTMENT. THIS GROUND IS ACCORDINGLY DISPOSE D OF. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 10 TH MAY, 2018 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 10/05/2018