Montecarlo Limited ( Formerly known as Montecarlo Construction Ltd.,), Ahmedabad V. The Dy.CIT, Central Circle-1(1), Ahmedabad

ITA 3649/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6161 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 29-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 43B; 28

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO. 3649/AHD/2015 / ASSESSMENT YEAR: 2012-13 MONTECARLO LIMITED (FORMERLY KNOWN AS MOTECARLO CONSTRUCTION LTD.) 602, 6 TH FLOOR, SHIP BUILDING, CG ROAD, NAVRANGPURA, AHMEDABAD-380 009 PAN : AAACM 7958 A VS. THE ACIT, CENTRAL CIRCLE-1(1), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI RAJDEEP SINGH, SR DR ! / DATE OF HEARING : 09/01/2018 / DATE OF PRONOUNCEMENT: 01/02/2018 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAI NST THE ORDER OF LEARNED CIT(A)-11, AHMEDABAD DATED 03.09.2015 PASSE D FOR ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACT S OF THE CASE IN CONFIRMING ACTION OF THE AO IN DISALLOWING AN AMOUN T OF RS.6,58,104/- BY INVOKING THE PROVISIONS OF SECTION 36(1)(VA) R.W.S. 2(24)(X) OF THE ACT WITH RESPECT TO THE EMPLOYEE'S CONTRIBUTION FUND TO PF W HICH WERE PAID BEFORE THE DUE DATE OF FURNISHING OF RETURN OF INCOME U/S 139(1) OF THE ACT. 2. THE ORDER PASSED BY THE LEARNED CIT(A) IS AGAI NST LAW AND FACTS OF THE APPELLANT'S CASE IN CONFIRMING IMPUGNED MADE BY THE AO IN UTTER ITA NO. 3649/AHD/2015 MONTECARLO LTD VS. DCIT FOR AY: 2012-13 2 DISREGARD TO THE RATIO OF THE SC IN CASE OF VINAY C EMENTS LTD. 213 CTR 268(SC) AND ALOM EXTRUSIONS LTD. WHERE IN THE APEX COURT HAS HELD THAT EMPLOYEES CONTRIBUTION TO PF/ESIC ETC., PAID BELATE DLY BUT BEFORE THE DUE DATE FOR FILING OF RETURN INCOME U/S 139(1) OF THE ACT FOR THE RELEVANT AY IS ALLOWABLE U/S 43B OF THE ACT. IT IS THEREFORE PRAYED THAT THE IMPUGNED ADDITION M ADE BY THE AO AND CONFIRMED BY THE CIT(A) MAY PLEASE BE DELETED. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234 B/C/D OF THE ACT. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ACTION OF LD. AO IN INITIATING PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE ACT. 3. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE; HOWEVER, AN ADJOURNMENT APPLICATION DATED 08.01.2018 WAS FILED. THE REASON FOR SEEKING ADJOURNMENT WAS NOT FOUND CONVINCING AND THEREFORE, THE ADJOURNMENT APPLICATION IS REJECTED, AND, WE THUS PROCEED TO DISPOSE OF THE APPEAL ON THE BASIS OF MATERIAL A VAILABLE ON RECORD AND AFTER CONSIDERING THE SUBMISSIONS OF THE DEPARTMENT AL REPRESENTATIVE. 4. WE FIND THAT THE ISSUE IN APPEAL HAS BEEN DECIDE D AGAINST THE ASSESSEE BY THE DECISION OF HONBLE GUJARAT HIGH CO URT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION, REPOR TED IN (2014) 366 ITR 170 (GUJ), WHEREIN THE HONBLE HIGH COURT HELD AS U NDER:- HELD : CONSIDERING SECTION 36(1)(VA) OF INCOME TAX ACT AS IT STANDS, WITH RESPECT TO ANY SUM RECEIVED BY ASSESSEE FROM ANY OF HIS EMP LOYEES TO WHICH PROVISIONS OF CLAUSE (X) OF SUB-SECTION (24) OF SEC TION 2 APPLIES, ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTION OF SUCH AMOUNT I N COMPUTING INCOME REFERRED TO IN SECTION 28 IF SUCH SUM WAS NOT CREDI TED BY ASSESSEE TO EMPLOYEES ACCOUNT IN RELEVANT FUND OR FUNDS ON OR BEFORE DUE DATE AS PER EXPLANATION TO SECTION 36(1)(VA) OF ACT. MERELY BEC AUSE SECOND PROVISO TO SECTION 43B OF THE ACT IN WHICH THERE WAS A REFEREN CE TO DUE DATE AS ITA NO. 3649/AHD/2015 MONTECARLO LTD VS. DCIT FOR AY: 2012-13 3 DEFINED IN EXPLANATION BELOW CLAUSE (VA) OF SUB-SEC TION (1) OF SECTION 36, IT CANNOT BE HELD THAT EVEN SECTION 36(1)(VA) WAS AMEN DED AND/OR EVEN EXPLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36 WAS ALSO DELETED. IT CAN BE SAID THAT THERE WAS A REFERENCE TO EXPLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36 IN SEC OND PROVISO OF SECTION 43B (WHICH HAS BEEN DELETED BY FINANCE ACT, 2003), ONLY FOR PURPOSE OF DEFINING DUE DATE AS PER EXPLANATION BELOW CLAUSE ( VA) OF SUB-SECTION (1) OF SECTION 36. THEREFORE, BY DELETING SECOND PROVISO T O SECTION 43B BY FINANCE ACT, 2003, IT CANNOT BE SAID THAT SECTION 3 6(1) (VA) IS AMENDED AND/OR EXPLANATION BELOW CLAUSE (VA) OF SUB- SECTIO N (1) OF SECTION 36 WAS DELETED, WHICH IS WITH RESPECT TO EMPLOYEES CONTRI BUTION. (PARA 7.11) ....... CONSIDERING SECTION 36(1)(VA) OF INCOME TAX ACT, 19 61 READ WITH SUB- CLAUSE (X) OF CLAUSE 24 OF SECTION 2, IT WAS HELD T HAT WITH RESPECT TO SUM RECEIVED BY ASSESSEE FROM ANY OF HIS EMPLOYEES TO W HICH PROVISIONS OF SUB- CLAUSE (X) OF CLAUSE (24) OF SECTION (2) APPLIES, A SSESSEE SHALL BE ENTITLED TO DEDUCTION IN COMPUTING INCOME REFERRED TO IN SECTIO N 28 WITH RESPECT TO SUCH SUM CREDITED BY ASSESSEE TO EMPLOYEES ACCOUNT IN RELEVANT FUND OR FUNDS ON OR BEFORE DUE DATE MENTIONED IN EXPLANAT ION TO SECTION 36(1)(VA). CONSEQUENTLY, IT WAS HELD THAT LEARNED T RIBUNAL HAD ERRED IN DELETING RESPECTIVE DISALLOWANCES BEING EMPLOYEES CONTRIBUTION TO PF ACCOUNT / ESI ACCOUNT MADE BY AO AS, AS SUCH, SUCH SUMS WERE NOT CREDITED BY RESPECTIVE ASSESSEE TO EMPLOYEES ACCOU NTS IN RELEVANT FUND OR FUNDS (IN PRESENT CASE PROVIDENT FUND AND/OR ESI FU ND ON OR BEFORE DUE DATE AS PER EXPLANATION TO SECTION 36(1)(VA) OF ACT I.E. DATE BY WHICH CONCERNED ASSESSEE WAS REQUIRED AS AN EMPLOYER TO C REDIT EMPLOYEES CONTRIBUTION TO EMPLOYEES ACCOUNT IN PROVIDENT FUN D UNDER PROVIDENT FUND ACT AND/OR IN THE ESI FUND UNDER ESI ACT. CONS EQUENTLY, ALL THESE APPEALS ARE ALLOWED AND IMPUGNED JUDGEMENT AND ORDE RS PASSED BY TRIBUNAL IN DELETING DISALLOWANCES MADE BY AO WAS H EREBY QUASHED AND SET ASIDE AND DISALLOWANCES OF RESPECTIVE SUMS WITH RESPECT TO PROVIDENT FUND / ESI FUND MADE BY AO WAS HEREBY RESTORED. QUE STIONS RAISED IN PRESENT APPEAL ARE ANSWERED IN FAVOUR OF REVENUE. W ITH THIS, ALL THESE APPEALS ARE ALLOWED. PARA 8) 5. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONB LE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT C ORPORATION (SUPRA), WE UPHOLD THE ORDER OF THE LEARNED CIT(A) IN CONFIR MING THE ITA NO. 3649/AHD/2015 MONTECARLO LTD VS. DCIT FOR AY: 2012-13 4 DISALLOWANCE OF RS.6,58,104/- BEING THE AMOUNT OF E MPLOYEES CONTRIBUTION TO PROVIDENT FUND & ESI. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST FEBRUARY, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/02/2018 BIJU T., SR.PS ! &'( )( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! # / CONCERNED CIT 4. # ( ) / THE CIT(A) 5. & ! , ! , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD