JCIT, New Delhi V. M/s. Indian Iron Steel Co. Ltd., New Delhi

ITA 3994/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2975 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 11-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 43B; 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SH. N.K.SAINI, ACCOUNTANT MEMBER AND SH.K.N.CHARY, JUDICIAL MEMBER ITA NO. 3994 / DEL/20 1 6 ( ASSESSMENT YEAR: 20 04 - 05 ) O O R O R ORDER PER K.N. CHARY , JUDICIAL MEMBER CHALLENGING THE ORDER DATED 14.3.2016 IN A PPEAL N O. 1170/CIT(A) - 1/C - 3(1)/2015 - 16 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 1, KOLKATA (FOR SHORT HEREINAFTER REFE3RRED TO AS LD. CIT(A) ), REVENUE PREFERRED THIS APPEAL ON THE FOLLOWING GROUNDS: I. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO U/S 43B ON ACCOUNT OF LATE DEPOSITING OF PF, CONTRIBUTED JCIT SPECIAL RANGE - 8, ROOM NO. 237, 2 ND FLOOR, C.R. BUILDING NEW DELHI VS INDIAN IRON STEEL CO. LTD. (NOW KNOWN AS STEEL AUTHORITY OF INDIA (LTD.), ISPAT BHAWAN, LODHI ROAD, NEW DELHI PAN: AAACI7171D (APPELLANT) (RESPONDENT) DEPARTMENT BY SH. ARUN KUMAR YADAV, SR. DR RESPONDENT BY NONE DATE OF HEARING 14.12.2017 DATE OF PRONOUNCEMENT 1 5 .12.2017 2 BY EMPLOYEES, IN RELEVANT FUND SCHEME BY THE ASSESSEE WHICH W AS MANDATORY U/S 36(1) (VA) READ WITH SECTION 2(24)(X) OF THE I.T. ACT. II. THE APPELLANT CRAVES TO AMEND MODIFY, ALTER, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE DERIVES INCOME FROM IRON & STEEL MANUFACTURING AND TRADING. FOR THE AY 2004 - 05 THEY HAVE FILED THEIR RETURN OF INCOME ON 29.10.2004 SHOWING THE TOTAL INCOME AS NIL AND SUBSEQUENTLY REVISED THE SAME ON 23.8.2005 . ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT HEREINAFTER REFERRED TO AS THE ACT ) WAS COMPLETED AT A NIL TAXABLE INCOME. HOWEVER , BY WAY OF ORDER DATED 22.1.2008 PASSED UNDER SECTION 143(3) / 154 OF THE A CT, LEARNED AO MADE AN ADDITION OF RS. 1903.23 LACS UNDER SE CTION 43B OF THE ACT HOLDING THAT AS PER ITEM 16(B) OF THE TAX AND AUDIT REPORT, EMPLOYEES CONTRIBUTION OF PF WAS DEPOSITED BEYOND THE DUE DATE AND AS PER SECTION 36(1)(VA) OF THE ACT, ANY SUM RECEIVED ON ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS PF IS ALL OWABLE ONLY IF SUCH SUMS ARE CREDITED BY THE ASSESSEE TO THE EMPLOYERS ACCOUNT IN THE RELEVANT FUND ON OR BEFORE THE RESPECTIVE DUE DATES. AS THERE IS NO PROVISION TO ALLOW LATE DEPOSIT OF CONTRIBUTION TO PF BY EMPLOYEES THE AMOUNT OF RS. 19,03,23,781/ - SH OULD BE DISALLOWED U/S 43B OF THE ACT AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 3. IN THE APPEAL PREFERRED BY THE ASSESSEE, LEARNED CIT(A) DELETED THE SAID AMOUNT, WHILE FOLLOWING THE DECISIONS REPORTED IN THE CASE OF CIT VS. ALOM EXTRUSION LTD. 319 ITR 306 SC AND CIT VS. VENUS CEMENT LTD. 2013 CTR 268 AND CIT VS. VIJAYASHREE LTD. HENCE THE REVENUE IS IN THIS APPEAL BEFORE US. 3 4. IT IS CONTENDED BY THE LEARNED DR THAT THE SECOND PROVISO TO SECTION 43B OF THE ACT, PROVIDING FOR DISALLOWANCE OF ITEMS IN CLAUSE (B) NAMELY PROVIDENT FUND AND ESI DEPOSITED BEYOND DUE DATE WAS OMITTED BY FINANCE ACT, 2003 W.E.F. 01.04.2004 RELEVANT TO AY 2004 - 05. THE AR FURTHER RELIED UPON VARIOUS DECISIONS IN THE CASE OF CIT VS. ALOM EXTRUSION LTD. 319 ITR 306 SC , CIT VS. VENUS CEMENT LTD. 2013 CTR 268 AND CIT VS. VIJAYASHREE LTD. THE ISSUE IS NO LONGER RES INTEGRA INASMUCH AS THE HON BLE CALCUTTA HIGH C OURT HELD THAT WHETHER THE DELETION OF THE ADDITIONS ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO ESI AND PF BY INVOKING THE PROVISIONS OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE ACT IS NOT AT ALL A SUBSTANTIAL QUESTION OF LAW. LEARNED SR. DR HEAVILY RELIED UPON THE ORDER OF THE LD. AO . 5. ON A CAREFUL CONSIDERATION OF THE MATTER WE FIND THAT THE LEARNED CIT(A) ON VERIFICATION OF THE RECORD FOUND THAT THE CONTRIBUTION WAS ACTUALLY PAID FOR VARIOUS MONTHS BEFORE THE DUE DATE OF FI LING AND THE DECISIONS OF THE HON BLE CALCUTTA HIGH COURT IN VIJAYASHRI LTD. CASE (SUPRA) IS APPLICABLE TO THE FACTS OF THE CASE . I N VIEW OF THIS FACTUAL AND LEGAL POSITION THAT THE SECOND PROVISO TO SECTION 43B OF THE ACT WAS OMITTED BY FINANCE ACT, 2003 W.E.F. 01.04.2004 WE FIND THAT THE IMPUGNED ORDER DOES NOT SUFFER ANY ILLEGALITY OR IRREGULARITY , SO THAT IT NEEDS TO BE INTERFERED WITH. WE, THEREFORE, UPHOLD THE FINDING OF THE LEARNED CIT(A) AND FIND THAT THE APPEAL IS DEVOID OF MERITS. WE ACCORDINGLY DISMISS THE SAME. 4 6 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH DECEMBER , 2017. SD/ - SD/ - ( N.K.SAINI ) (K.N.CHARY) ACCOUNTNAT MEMBER JUDICIAL MEMBER DATE : - 15 TH DEC , 2017 SH COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 1 4 .1 2 .2017 PS 2. DRAFT PLACED BEFORE AUTHOR 15 .1 2 .2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 15 .1 2 .2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 15 .1 2 .2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.