ACIT, New Delhi V. M/s Consulting Engineering, New Delhi

ITA 3823/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9843 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-08-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 31-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Assessee Lawyers: AMAR MITTAL; SUMEDHA SHARMA CA S
• Section: 43B; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `B : NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.3823/DEL./2008 (ASSESSMENT YEAR : 2002-03) ACIT, CIRCLE 3(1), VS. M/S CONSULTING ENGG. SERVIC ES (P) LTD., NEW DELHI. 57, NEHRU PLACE, NEW DELHI. (PAN/GIR NO.AAACC5110G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMAR MITTAL & SUMEDHA SHARMA, CA S REVENUE BY : SHRI MANISH GUPTA, DR ORDER PER K.D. RANJAN: AM THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 2002 -03 ARISE OUT OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VI, NEW DE LHI. THE ONLY ISSUE FOR CONSIDERATION RELATES TO DELETING THE ADDITION OF R S.1,15,43,640 MADE BY THE ASSESSING OFFICER U/S 2(24)(X) READ WITH SECTION 36(1)(VA) OF THE ACT ON ACCOUNT OF DELAYED PAYMENT OF EMPLOYEES PROVIDENT FUND. 2. THE FACTS OF THE CASE RELATING TO THIS GROUND OF APPEAL ARE THAT THE ASSESSEE MADE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF BELATEDLY A S AGAINST THE DUE DATE FOR PAYMENT INCLUDING GRACE PERIOD OF 5 DAYS. THE ASSESSING OF FICER DISALLOWED THE CLAIM FOR DEDUCTION U/S 36(1)(VA) AND TREATED THE EMPLOYEES CONTRIBUTION AS INCOME U/S 2(24)(X) OF THE I.T. ACT. IN APPEAL, THE COMMISSIONER OF INCOM E-TAX (APPEALS) DELETED THE ADDITION ON THE GROUND THAT ITAT, DELHI BENCH IN THE CASE OF KUBER HINGES PVT. LTD., IN I.T.A. NO.1654/DEL./2007 DATED 27.03.2008 UNDER IDENTICAL CIRCUMSTANCES HAD DELETED THE ADDITION. 3. BEFORE US, LD.DR SUBMITTED THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF P.M. ELECTRONICS LTD., 117 TAXMAN 01 IS NOT APPL ICABLE TO THE ADDITION MADE U/S 36(1)(VA) OF THE ACT READ WITH SECTION 2(24)(X) OF THE ACT. IN THE CASE OF P.M. ELECTRONICS I.T.A. NO.3823/DEL/2008 (A.Y. : 2002-03) 2 LTD., HONBLE DELHI HIGH COURT HAS RELIED ON THE DE CISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. VINAY CEMENT LTD. AND CIT VS . DHARMENDRA SHARMA, 297 ITR 320. THESE DECISIONS RELATE TO ADDITIONS MADE U/S 43B OF THE ACT AND NOT WITH THE ADDITIONS MADE U/S 2(24)(X) READ WITH SECTION 36(1)(VA) OF TH E ACT. THEREFORE, THE DECISION IN THE CASE OF P.M. ELECTRONICS IS NOT APPLICABLE TO THE F ACTS O THE ASSESSEES CASE. ON THE OTHER HAND, LD.AR OF THE ASSESSEE RELIED ON THE DECISIONS OF THE HONBLE DELHI HIGH COURT AND OTHER HIGH COURTS IN SUPPORT OF THE CONTENTION THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER HAS DISALLOWED EMPLOYEES CON TRIBUTION TOWARDS PF ON THE GROUND THAT THE SAME WERE DEPOSITED BEYOND THE DUE DATE AL LOWED UNDER IRRESPECTIVE OF STATUTE. THE ASSESSEE HAD FILED DETAILS, ACCORDING TO WHICH, THE PAYMENT OF EMPLOYEES CONTRIBUTION TO EPF HAVE NOT BEEN MADE BY DUE DATES INCLUDING THE GRACE PERIOD. HOWEVER, WE FIND THAT THE PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME. THUS, THIS ISSUE IS NOW COVERED BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. P. M. ELECTRONICS LTD. (SUPRA). IN THIS CASE HONBLE DELHI HIGH COURT HAS FOLLOWED THE DECISION OF HONBLE MAD RAS HIGH COURT IN THE CASE OF CIT VS. NEXUS COMPUTERS PVT. LTD. DATED 18/08/2008 PASS ED IN TAX CASE (A) NO. 1192 / 2008 WHEREIN THE HONBLE MADRAS HIGH COURT HAD DISC USSED THE IMPACT OF DISMISSAL OF SPECIAL LEAVE PETITION IN THE CASE OF CIT VS. GEORG E WILLIAMSON (ASSAM) LTD. 284 ITR 613 (GUJ.) AND CIT VS. VINAY CEMENT, 213 ITR 268. THE DIVISION BENCH OF HONBLE MADRAS HIGH COURT HAD EXPLAINED THE EFFECT OF DISMI SSAL OF SPECIAL LEAVE PETITION BY A SPEAKING ORDER BY RELYING UPON THE JUDGEMENT OF HON BLE SUPREME COURT IN THE CASE OF KUNHAYAMMED AND OTHERS VS. STATE OF KERALA AND ANOT HER 119 STC 505 (KER). HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. P. M. ELECT RONICS LTD. (SUPRA) ALSO CONSIDERED THE DECISION OF DIVISION BENCH IN THE CASE OF CIT V S. DHARMENDRA SHARMA 297 ITR 320. IT HAS BEEN HELD THAT THE ASSESSEE WILL BE ENTITLED FOR DEDUCTION ON ACCOUNT OF DELAYED PAYMENT OF EMPLOYEES/ EMPLOYERS CONTRIBUTION TOWA RDS PROVIDENT FUND AND ESI WHERE PAYMENTS WERE MADE AFTER DUE DATE PRESCRIBED UNDER RESPECTIVE STATUTE BUT BEFORE THE DUE DATE OF FURNISHING THE RETURN OF INCOME UNDER SECTI ON 139(1) OF THE ACT. RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD THAT THE ASSESS EE IS ENTITLED FOR DEDUCTION UNDER SECTION I.T.A. NO.3823/DEL/2008 (A.Y. : 2002-03) 3 36(1)(VA) OF THE ACT. WE, THEREFORE, DO NOT FIND A NY INFIRMITY IN THE ORDER PASSED BY LD. CIT (APPEALS) AND DIRECT THE ASSESSING OFFICER TO A LLOW THE CLAIM OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUG., 2009. [ I.P. BANSAL ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : AUG. 28, 2009. *SKB* COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS)-VI, NEW DELHI. 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT. I.T.A. NO.3823/DEL/2008 (A.Y. : 2002-03) 4