Nissan Syntex Pvt.Ltd., Ahmedabad V. The CIT (A)-9, Ahmedabad

ITA 328/AHD/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8074 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 09-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH SINGH
• Section: 143(3)

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 328/AHD/2018 ( ASSESSMENT YEAR : 2013-14) M/S. NISSAN SYNTEX PVT. LTD., 237/238B, GIDC INDUSTRIAL ESTATE, NARODA, AHMEDABAD / VS. THE COMMISSIONER OF INCOME TAX APPEAL-9, AHMEDABAD ./ ./ PAN/GIR NO. : AAACN5216P ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI SAURABH SINGH, SR. D.R. DATE OF HEARING 20/06/2018 !'# / DATE OF PRONOUNCEMENT 28/06/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-9, AHMEDAB AD (CIT(A) IN SHORT), DATED 29.11.2017 ARISING IN THE ASSESSME NT ORDER DATED 04.03.2016 PASSED BY THE ASSESSING OFFICER (AO) U/S . 143(3) OF ITA NO. 328/AHD/18 [M/S. NISSAN SYNTEX P. LTD. VS. CIT] A.Y. 2013-14 - 2 - THE INCOME TAX ACT, 1961; (THE ACT) CONCERNING ASSE SSMENT YEAR 2013-14. 2. ASSESSEE HAS FILED BELATED APPEAL BY TWO DAYS. CONSIDERING THE SMALLNESS OF DELAY, THE SAME STANDS CONDONED AN D THE APPEAL IS ADMITTED FOR HEARING. 3. THE SOLITARY ISSUE IN THE CAPTIONED APPEALS IS AGAINST THE DENIAL OF BUSINESS DEDUCTION UNDER S. 36(1)(VA) ON ACCOUNT OF ALLEGED LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND (PF) AND EMPLOYEES' STATE INSURANCE CORPORATIO N (ESIC) AMOUNTING TO RS.1,60,087/-. 4. THE CIT(A) DENIED THE RELIEF CLAIMED BY THE ASSE SSEE IN THE FIRST APPEAL. 5. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 6. WE HAVE EXAMINED THE ISSUE TOWARDS ALLOWABILITY OF PF & ESIC UNDER S.36(1)(VA) OF THE ACT. WE NOTICE AT TH E OUTSET THAT THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN T HE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION 366 IT R 170 (GUJ) IS AGAINST THE ASSESSEE ON THE FIRST PRINCIPLES. T HE HONBLE GUJARAT HIGH COURT CONSIDERED THE QUESTION WITH RES PECT TO THE DISALLOWANCE OF AMOUNT BEING EMPLOYEES CONTRIBUTIO N TO PF ACCOUNT/ESIC CONTRIBUTION, WHICH ADMITTEDLY, THE AS SESSEE IN THAT CASE DID NOT DEPOSIT WITH THE PF DEPARTMENT/ ESIC D EPARTMENT ON ITA NO. 328/AHD/18 [M/S. NISSAN SYNTEX P. LTD. VS. CIT] A.Y. 2013-14 - 3 - OR BEFORE THE DUE DATE UNDER THE PF ACT AND/OR ESI ACT. HOWEVER, ON PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES, WE SIMULTANEOUSLY OBSERVE THAT THE ASSESSEE HAS TRIED TO DEMONSTRATE THAT EMPLOYEES CONTRIBUTION TO PF/ESIC HAS BEEN MA DE BEFORE THE DUE DATE AS PRESCRIBED UNDER THE RESPECTIVE ACT H AVING REGARD TO THE MONTH OF DISBURSEMENT OF SALARY/WAGES AND ALSO THE GRACE PERIOD AVAILABLE UNDER THE RELEVANT ACTS. IT IS TH US BROADLY THE CASE OF THE ASSESSEE THAT THE RELEVANT DUE DATE F OR MAKING PAYMENT OF CONTRIBUTION HAS TO BE SEEN NOT WITH REF ERENCE TO THE RELEVANT MONTHS RELATABLE TO WAGES/SALARY BUT THE M ONTH OF ITS ACTUAL DISBURSEMENT. COUPLED WITH THIS, GRACE PERIO D AVAILABLE UNDER THE RESPECTIVE ACT IS ALSO REQUIRED TO BE TAK EN INTO ACCOUNT. IN THIS REGARD, WE OBSERVE THAT THE CO-ORDINATE BEN CH OF TRIBUNAL IN KANOI PAPER & INDUSTRIES LTD. VS. ACIT 75 TTJ 44 8 HAS OBSERVED THAT THE RELEVANT DUE DATE IN SUCH A CASE IS TO BE SEEN WITH REFERENCE TO THE MONTH OF THE ACTUAL DISBURSE MENT OF WAGES/SALARIES. WE ALSO ARE OF THE VIEW THAT GRACE PERIOD AVAILABLE UNDER THE RESPECTIVE ACTS SHOULD BE TAKEN INTO ACCOUNT WHILE COMPUTING THE DELAY, IF ANY. 7. HENCE, WE CONSIDER IT EXPEDIENT TO RESTORE THE I SSUE BACK TO THE FILE OF THE AO FOR FACTUAL VERIFICATION AND RE- DETERMINATION OF THE ISSUE IN THE LIGHT OF THE OBSERVATIONS MADE BY THE CO-ORDINATE BENCH IN THE CASE OF KANOI PAPER & INDUSTRIES LTD. (SUPRA). THE AO SHALL THUS RE-COMPUTE THE AMOUNT OF DISALLOWANCE UNDER S.36(1)(VA) OF THE ACT, IF ANY, ON THE ABOVE BASIS, IN ACCORDANCE WITH LAW. THE ASSESSEE SHALL BE ENTITLED TO RELIEF UNDER S. 36(1)(VA) OF THE ACT WHERE IT IS FOUND THAT THE DEP OSITS HAVE BEEN MADE TOWARDS PF/ESIC WITHIN THE DUE DATE FROM THE C LOSE OF ITA NO. 328/AHD/18 [M/S. NISSAN SYNTEX P. LTD. VS. CIT] A.Y. 2013-14 - 4 - MONTH OF ACTUAL DISBURSEMENT OF SALARY/WAGES IN THE LIGHT OF INTERPRETATION RENDERED IN CASE OF KANOI PAPER & IN DUSTRIES LTD. (SUPRA). 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MADHUMITA ROY) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 28/06/2018 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 28/06/2018