DCIT, Circle-2(2), Hyderabad, Hyderabad V. Tibrewala Electromech Pvt. Ltd., Hyderabad, Hyderabad

ITA 357/HYD/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2716 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K A SAI PRASAD
• Assessee Lawyers: DR DIVYA K J
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B BENCH: HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA. NO. 357/HYD/2017 ASSESSMENT YEAR : 2012 - 2013 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 2(2), HYDERABAD. VS. M/S. TIBREWALA ELECTROMECH PVT LTD., PLOT NO. B - 66, APIE, BALANAGAR, HYDERABAD. PAN: AAACT 7512 K (APPELLANT) (RESPONDENT) FOR ASSESSEE: SMT. DR. DIVYA K.J - DR FOR REVENUE : SHRI K.A. SAI PRASAD DATE OF HEARING : 09.01.2018 DATE OF PRONOUNCEMENT : 09.01.2018 ORDER PER D. MANMOHAN , VP. 1. THE ONLY GROUND URGED BY THE REVENUE READS AS UNDER: - IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE CIT (A) IS CORRECT IN LAW IN HOLDING THAT THE PAYMENT OF THE EMPLOYEES CONTRIBUTION TOWARDS EPF & ESI BY THE EMPLOYER - ASSESSEE, WHICH IS NOT IN CONSONANCE WITH THE EXPLANATION TO SECTION 36(1)(VA) IS ENTITLED FOR DEDUCTION U/S 43B OF THE IT ACT? 2. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTENDED THAT THE STATUTE PRESCRIBES A TIME LIMIT FOR PAYMENT OF EMPLOYEES CONTRIBUTION TO EPF AND ESI , U/S 36(1)(VA) OF THE ACT, AND THE PROVISIONS HAVING BEEN INTRODUCED AS A WELFARE LEGISLATION, AN ASSESS EE WHO HAS NOT FULFILLED THE CONDITION CANNOT ESCAPE THE WRATH OF THE PROVISIONS OF SECTION 43B OF THE ACT. 2 3. ON THE OTHER HAND, LD COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT AN IDENTICAL ISSUE HAS COME UP BEFORE THE HONBLE SUPREME COURT IN THE CA SE OF CIT VS. ALOM EXTRUSIONS LTD (319 ITR 36), WHICH IN TURN WAS FOLLOWED BY THE ITAT, HYDERABAD A BENCH IN THE CASE OF VBC INDUSTRIES LTD VS. DCIT (ITA NO.143/HYD/2013) WHEREBY IF ANY PAYMENT IS MADE TOWARDS EMPLOYEES CONTRIBUTION TO EPF / ESI BEFORE DUE DATE FOR FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT, DISALLOWANCE CANNOT BE MADE BY INVOKING THE PROVISIONS OF SECTION 43B OF THE ACT. LD COUNSEL FOR THE ASSESSEE PLACED RELIANCE UPON THE FOLLOWING DECISIONS: - (1) I.T.A. NO.293/HYD/2017 IN THE CASE OF ITO VS. M/S. TOSHALI CEMENTS PVT. LTD. AND (2) I.T.A NO. 840/HYD/2016 IN THE CASE OF ITO VS. M/S. GOLDEN STAR FACILITIES AND SERVICES P. LTD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. CONSISTENT WITH THE VIEW TAKEN BY THE ITAT, HYDERABAD BENCH WHICH IN TURN WAS BASED UPON THE DECISIONS OF VARIOUS HIGH COURTS AS WELL AS HONBLE SUPREME COURT, WE HOLD THAT LD. CIT(A) WAS JUSTIFIED IN HIS CONCLUSION THAT THE A.O. HAS WRONGLY INVOKED THE PROVISIONS OF SECTION 36(1)(VA) R.W. S 2(24)(X) OF THE ACT. WE THEREFORE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 09 TH JANUARY, 2018. S D / - S D / - (S. RIFAUR RAHMAN) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT HYDERABAD, DATED: 09 TH JANUARY, 2018. OKK, SR.PS 3 COPY TO 1. M/S. TIBREWALA ELECTROMECH PVT LTD., PLOT NO.B - 66, APIE, BALANAGAR, HYDERABAD. 2. DCIT, CIRCLE - 2(2), ROOM NO. 513, 5 TH FLOOR, SIGNATURE TOWERS, KONDAPUR, HYDERABAD. 3. CIT (A) - 2, HYDERABAD. 4. PR. CIT - 2, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE