Jayem Automotives Private Limited, Coimbatore V. ACIT, Coimbatore

ITA 399/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4351 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: MRS NITYA SANKARAN
• Keywords: Principle of natural justice
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI . . . , !.. $ , ) BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.399/MDS/2017 * * /ASSESSMENT YEAR: 2013-14 M/S.JAYEM AUTOMOTIVES PVT. LTD., NO.2, ONDIPUDUR ROA, SINGANALLUR, COIMBATORE-641 005. VS. THE ASST. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-2, COIMBATORE, (PREVIOUSLY DCIT, CROP. CIRCLE-2, CBE) [PAN: AAACJ 8290 J ] ( - /APPELLANT) ( ./- /RESPONDENT) - 0 / APPELLANT BY : MRS.NITYA SANKARAN, CA ./- 0 /RESPONDENT BY : MR.SHIVA SRINIVAS, JCIT 0 /DATE OF HEARING : 12.04.2017 0 /DATE OF PRONOUNCEMENT : 08.06.2017 / O R D E R PER D.S.SUNDER SINGH , ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 30.11.2016 OF COMMISSIONER OF INCOME TAX (APPEALS)- 1, COIMBATORE, IN APPEAL NO.28/16-17 FOR THE AY 2013-14 AND RAISED T HE FOLLOWING GROUNDS: 1. THE ORDER OF THE HONOURABLE COMMISSIONER OF INCO ME TAX (APPEALS) IS OPPOSED TO LAW AND CONTRARY TO THE FACTS OF THE CASE AND AGAINST E QUITY AND PRINCIPLES OF NATURAL JUSTICE. 2. A) THE HONOURABLE COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN CONCLUDING THAT THE DUE DATE FOR REMITTING THE EMPLOYEES CONTRIBUTION IS COVERED BY EXPLANATION TO SECTION 36(1)(VA) AND NOT BY EXPLANATION TO SECTION 43B. ITA NO.399/MDS/2017 :- 2 -: B) THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEAL S) OUGHT TO HAVE FOLLOWED THE DECISION OF THE JURISDICTIONAL HIGH COURT, WHERE TH ERE ARE CONFLICTING JUDGMENTS RENDERED BY JURISDICTIONAL AND NON-JURISDICTIONAL HIGH COURTS. IN VIEW OF THE ABOVE GROUNDS AND SUCH OTHER ADDITIO NAL GROUNDS AS MAY BE ADDUCED AT THE TIME OF HEARING WITH THE LEAVE OF THE HONOURABLE IN COME TAX APPELLATE TRIBUNAL, THE APPELLANT PRAYS BEFORE THE HONOURABLE INCOME TAX AP PELLATE TRIBUNAL THAT; A) THE ORDER OF THE HONORABLE COMMISSIONER OF INCOME TA X (APPEALS) UPHOLDING THE ACTION OF THE LEARNED ASSESSING OFFICER DENYING THE CLAIM U/S.43B BE SET ASIDE, B) DIRECTIONS BE GIVEN TO THE LEARNED ASSESSING OFFICER TO TREAT THE REMITTANCE MADE BY THE APPELLANT TOWARDS EMPLOYEES CONTRIBUTION AS PAID WITHIN THE DUE DATE AND ALLOW THE CLAIM U/S.43B, AND C) SUCH OTHER CONSEQUENTIAL ORDERS MAY BE PASSED AS TH E HONOURABLE INCOME TAX APPELLATE TRIBUNAL MAY DEEM FIT TO RENDER JUSTICE. 2.0 ALL THE GROUNDS OF THE APPEAL ARE RELATED TO THE B ELATED PAYMENT OF PF & ESI TO THE TUNE OF RS.48,79,388/- TO THE RESPE CTIVE FUND ACCOUNTS. THE AO BROUGHT THE ABOVE AMOUNT TO TAX SINCE THE AM OUNTS WERE REMITTED TO THE RESPECTIVE ACCOUNTS BEYOND THE DUE DATE PRES CRIBED UNDER PF & ESI ACTS. THE DETAILS OF DEDUCTION AND THE DATE OF REM ITTANCE TO THE RESPECTIVE ACCOUNTS ARE FURNISHED AS UNDER: 7.1 ON A PERUSAL OF THE DETAILS FLIED, IT IS NOTICED FROM THE ANNEXURE TO 3CD REPORT THAT THE ASSESSEE COMPANY HAD DELAYED THE REMITTANCE OF PROV IDENT FUND & ESI COLLECTED FROM ITS EMPLOYEES DURING THE FOLLOWING MONTHS: S.NO. NAME OF THE FUND AMOUNT ACTUAL DATE OF REMITTANCE DUE DATE FOR REMITTANCE 1 PF RS.4,31,880 21-05-2012 15-05-2012 2 PF RS.4,63,383 21-06-2012 15-06-2012 3 PF RS.5,34,327 21-08-2012 15-08-2012 4 PF RS.5,71,367 21-09-2012 15-09-2012 5 PF RS.6,02,736 23-11-2012 15-11-2012 6 PF RS.5,90,893 24-12-2012 15-12-2012 7 PF RS.6,00,633 31-01-2013 15-01-2013 8 PF RS.6,04,078 21-03-2013 15-03-2013 9 ESI RS.51,425 28-06-2012 20-06-2012 10 ESI RS.54,688 23-07-2012 20-07-2012 11 ESI RS.57,488 31-08-2012 20-08-2012 12 ESI RS.63,840 27-09-2012 20-09-2012 13 ESI RS.64,912 26-11-2012 20-11-2012 14 ESI RS.62,024 24-12-2012 20-12-2012 15 ESI RS.63,448 02-02-2013 20-01-2013 16 ESI RS.62,266 28-03-2013 20-03-2013 TOTAL RS.48,79,388 ITA NO.399/MDS/2017 :- 3 -: 3.0 THE LD.CIT(A) CONFIRMED THE ADDITION AS UNDER: 6. AS REGARDS THE BALANCE AMOUNT OF RS.44,47,508/- WHICH WAS NOT PAID WITHIN THE DUE DATE AS PRESCRIBED IN SECTION 43B OF THE INCOME TAX ACT, 1961. THE EMPLOYEES CONTRIBUTION IS COVERED BY EXPLANATION 36(1)(VA). THE HONBLE HIGH COURT IN THE CASE OF CIT VS GUJARAT STATE TRANSPORT CORPORATION (41 TAXMANN. COM 100 (GUJ) AND COURT IN THE CASE OF CIT VS MERCHEM LTD (378 LTR 443) HAVE SPECIFICALL Y HELD THAT EMPLOYEES CONTRIBUTION NOT CREDITED IN THE SPECIFIED ACCOUNT WITHIN DUE DA TE AS PROVIDED UNDER RELEVANT STATUTE CANNOT BE ALLOWED. IN VIEW OF THE DETAILED DECISION S RENDERED BY THE GUJARAT HIGH COURT AND THE KERALA HIGH COURT AS WELL AS THE CBDT CIRCU LAR NO.22/2015 DATED 17.12.2015 WHEREIN THE CBDT HAS CLARIFIED THAT THE SAID CIRCUL AR DOES NOT APPLY TO CLAIM OF DEDUCTION RELATING TO EMPLOYEES CONTRIBUTION TO WELFARE FUND S WHICH ARE GOVERNED BY SECTION.36(1)(VA) OF THE INCOME TAX ACTS 1961, THE A MOUNT OF RS.44,47,508/- AS DETAILED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ST ANDS CONFIRMED IN THE HANDS OF THE APPELLANT. 4.0 WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL PLACED BEFORE US. THOUGH THE ASSESSEE HAS REMITTED THE AMOUNTS BEYON D THE PRESCRIBED DUE DATES OF PF & ESI ACTS, THE ASSESSE E HAS REMITTED THE AMOUNTS BEFORE FILING THE RETURN OF INCOME AND BEFO RE THE DUE DATE OF FILING THE RETURN OF INCOME. THIS ISSUE IS SQUAREL Y COVERED IN FAVOUR OF THE ASSESSEE BY THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT V. INDUSTRIAL SECURITIES & INTELLIGENCE INDIA PVT. LTD . (2015) 7 TML 1063 MADRAS HC. 5.0 RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE ALLOW THE APPEAL OF THE ASSESSEE AND SET- ASIDE THE ORDERS OF THE LOWER AUTHORITIES. ITA NO.399/MDS/2017 :- 4 -: 6.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 08, 201 7, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ! . . $ ) (D.S.SUNDER SINGH) /ACCOUNTANT MEMBER /CHENNAI, 5 /DATED: JUNE 08, 2017. TLN 0 .$6 76 /COPY TO: 1. - /APPELLANT 4. 8 /CIT 2. ./- /RESPONDENT 5. 6 . /DR 3. 8 ( ) /CIT(A) 6. * /GF