ACIT, Faridabad V. M/s O.K. Auto Components Pvt. Ltd., Faridabad

ITA 3553/DEL/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58479 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 12-01-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 02-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NO.3553/DEL./2008 (ASSESSMENT YEAR : 2004-05) ACIT, RANGE II, VS. M/S O.K. AUTO COMPONENTS (PVT .) LTD., FARIDABAD. A-131, S.G.M. NAGAR, FARIDABAD. (PAN/GIR NO.AAACO5570E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GURJEET SINGH, C.A. REVENUE BY : SMT. ANUSHA KHURANA, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A),FARIDABAD DATED 26.9.2008, RELEVANT TO ASSESSMENT YEAR 2006-0 7, WHEREBY FOLLOWING TWO EFFECTIVE GROUNDS HAVE BEEN RAISED: 1. ON THE FATS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF RS.1,0 6,458/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LATE DEPOSIT OF EMP LOYEES SHARE TO PF WITHOUT APPRECIATING THE FACT THAT THE PAYMENTS WER E MADE BEYOND THE DUE DATE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF RS.4,8 6,054/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION DISREGAR DING THE FACTS THAT THE ASSESSEE HAVING FAILED TO DISCHARGE THE ONUS THAT C LAIM OF COMMISSION PAID IS INDEED FOR THE PURPOSES OF BUSINESS. 2. AS REGARDS FIRST ISSUE, ASSESSING OFFICER MADE D ISALLOWANCE OF RS.1,06,458/- OUT OF EMPLOYEES SHARE OF PROVIDENT FUND. AFTER HAVING EXAMINED THE TAX AUDIT REPORT WHICH SHOWS THE DATE OF PAYMENT AS PER ASSESSING OFFICER, WHICH WERE NOT DUE DATES OF PAYMENT, SO DISALLOWANCE U/S 36(1)(VA) OF THE I.T. ACT, 1961, WAS MADE. AGAINST WHICH ASSESSEE PREFERRED APPEAL AND IT WAS PLEADED BEFORE FIRST APPELLATE AUTHORITY THAT ASSESSEE I.T.A. NO.3553/DEL./2008 (A.Y. : 2004-05) 2 MADE PAYMENT OF EMPLOYEES PROVIDENT FUND WITHIN THE GRACE PERIOD OF 5 DAYS AS PER CIRCULAR OF THE DEPARTMENT OF PROVIDENT FUND. IT W AS ALSO PLEADED BEFORE FIRST APPELLATE AUTHORITY THAT SIMILAR DISALLOWANCE WAS MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2003-04 IN THE CASE OF THE ASSESSEE WHICH CAME TO B E DELETED BY CIT(A). 3. THE CIT(A), WHILE CONSIDERING AND ACCEPTING THE PLEA OF THE ASSESSEE HAS CONCLUDED TO DELETE THE DISALLOWANCE AS PER PARA.6 OF HIS ORDER WHICH READS AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD.AR AND PERUSED THE ORDER OF ASSESSMENT. FROM THE PLAIN READING OF THE DETAI LS OF P.F. MENTIONED IN THE ASSESSMENT ORDER, IT IS FOUND THAT ALL OF THEM WERE PAID WITHIN THE GRACE PERIOD OF 5 DAYS, IN THAT THE DATE OF TENDERING OF THE CHEQUE S HAS TO BE CONSIDERED FOR THE PURPOSE OF PAYMENT. MOREOVER, IT IS NOW ESTABLISHE D BY THE LD.JURISDICTIONAL TRIBUNAL IN THE CASE OF M/S KUBER HINGES PVT. LTD. VS. ITO, WARD 5(3) IN I.T.A. NO.1654/DEL./07 DATED 27.03.2008 FOR THE A.Y. 2001- 02, WHEREIN THE HONBLE KARNATAKA HIGH COURTS RATIO IN THE CASE OF CIT VS. SABARI ENTERPRISES (2007) 213 CTR 269(KAR.) HAS BEEN FOLLOWED, THAT THE CONTRIBUT IONS OF EMPLOYEES P.F. EVEN IF PAID LATE BUT DEPOSITED BEFORE THE DATE OF FILIN G THE RETURN U/S 139(1), ARE ALLOWABLE DEDUCTIONS U/S 36(1)(VA) READ WITH SECTIO N 43B. IN VIEW OF SUCH DECISIONS, THE DISALLOWANCE WORKED OUT BY THE ASSES SING OFFICER AT RS.1,06,458/- BECOMES UNWARRANTED AND THEREFORE, STANDS DELETED. 4. AGGRIEVED BY THIS ORDER OF CIT(A), DEPARTMENT HA S COME UP IN APPEAL. 5. LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET SUBMITTED THAT ISSUE IS NOT ONLY COVERED BY VARIOUS DECISIONS OF THE TRIBUNAL BENCHE S, BUT BY LATEST DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. LAKHANI RUBBER WORKS, 326 I.T.R. 415 AND MOREOVER THE PAYMENT OF EMPLOYEES CONTRIBUT ION OF PROVIDENT FUND HAS BEEN MADE PRIOR TO DUE DATE FOR FILING OF THE RETURN. T HEREFORE, THE ORDER OF CIT(A) IS VERY MUCH JUSTIFIED WHICH NEEDS TO BE CONFIRMED AND TO T HIS ARGUMENT OF LD.COUNSEL FOR THE ASSESSEE, LD.SR.DR DID NOT OBJECT. 6. HAVING HEARD BOTH THE SIDES AND CONSIDERING THE MATERIAL ON RECORD AS WELL AS PRECEDENTS RELIED UPON BY THE LD.COUNSEL FOR THE AS SESSEE, WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE AND DISMISS THE APPEAL OF THE REVENUE. 7. AS REGARDS SECOND ISSUE IN RELATION TO DELETION OF ADDITION OF RS.4,86,054/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION, ASSESSING OFFICER MADE SUCH DISALLOWANCE, BUT CIT(A) DELETED THE SAME AS PER PA RAS. 15 & 16 OF HIS ORDER WHICH READ AS UNDER: I.T.A. NO.3553/DEL./2008 (A.Y. : 2004-05) 3 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD.AR AND PERUSED THE ORDER OF ASSESSMENT. I TEND TO CONCUR WITH THE CON TENTIONS OF THE LD.AR THAT THE ASSESSING OFFICER HAS NOT BEEN ABLE TO PROVE THE IN GENUINENESS OF THE COMMISSION PAYMENTS AND THE DISALLOWANCE HAS BEEN WORKED OUT O N PRESUMPTIONS AND SUSPICION, WITHOUT GOING INTO THE ACTUAL SERVICES R ENDERED BY THE CONCERNED PARTIES IN SUPPORT OF WHICH VARIOUS DOCUMENTS WERE PRODUCED BEFORE THE ASSESSING OFFICER AND THEY WERE NOT CHALLENGED AND DISPUTED B Y THE ASSESSING OFFICER AS SUCH. I HAVE GIVEN THE FINDINGS IN MY ORDER FOR THE ASSES SMENT YEAR 2003-04 WHEREIN ON THE SAME SET OF FACTS CIRCUMSTANCES, THE COMMISSION PAYMENTS WERE DISALLOWED BY THE ASSESSING OFFICER WITHOUT ANY JUS TIFICATION, IN THE ABSENCE OF ANY MATERIAL BROUGHT ON RECORD BY HIM. SIMILAR IS THE CASE AND SITUATION IN THIS YEAR TOO WHERE THE ASSESSING OFFICER HAS BUILT HIS CASE ON SUSPICIONS/PRESUMPTIONS WITHOUT BRINGING ANY FRESH MATERIAL ON THE RECORDS FOR MAKING THE DISALLOWANCE OUT OF THE COMMISSION PAYME NTS. THEREFORE, THE DISALLOWANCE OF RS.4,86,054/- STANDS DELETED. 8. AGGRIEVED BY SUCH ORDER OF CIT(A), DEPARTMENT HA S COME UP IN APPEAL AND LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET, SU BMITTED THAT THE ISSUE IN RELATION TO COMMISSION PAYMENT IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY DELHI BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003-04 IN ACIT VS. M/S O.K. AUTO ENGG. WORKS, FARIDABAD VIDE I.T.A. NO.3447/DEL./200 8 DATED 07.12.2009. THEREFORE, THE ORDER OF CIT(A) BEING IN CONFORMITY WITH THE DECISI ON OF THE ITAT IS LIABLE TO BE CONFIRMED BEING A COVERED MATTER. IT WAS PLEADED F OR CONFIRMATION OF THE IMPUGNED ORDER IN THIS REGARD WHEREAS LD.DR COULD NOT CONTRO VERT THIS FACTUAL ASPECT AND JUST RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 9. HAVING HEARD BOTH THE SIDES AND PERUSING THE MAT ERIAL ON RECORD, WE FIND THAT THE ISSUE RAISED IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY EARLIER DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSE SSMENT YEAR 2003-04 VIDE ORDER DATED CITED SUPRA AND NO SUPERIOR COURT ORDER HAS BEEN PR ODUCED BY THE LD.DR, BY VIRTUE OF WHICH THE SAID DECISION OF THE TRIBUNAL HAS BEEN RE VERSED OR MODIFIED IN THIS REGARD. AS SUCH, WHILE FOLLOWING THE SAID DECISION OF THE TRIB UNAL IN ASSESSEES OWN CASE FOR THE EARLIER YEAR, WE UPHOLD THE IMPUGNED ORDER AND DISM ISS THE APPEAL OF THE REVENUE. I.T.A. NO.3553/DEL./2008 (A.Y. : 2004-05) 4 10. AS A RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT SOON AFTER THE CLOS URE OF THE HEARING ON 12.01.2012. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : JANUARY 12, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), FARIDABAD. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT