Indra Security & Allied Services Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-2(1)(3), Ahmedabad

ITA 425/AHD/2022

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9918 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 08-11-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 10

Judgement Text

आयकर य कर , हमदाबाद याय हमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL “ A ” BENCH, AHMEDABAD BEFORE SMT. ANNAPURA GUPTA, ACCOUNTANT MEMBER & SHRI T.R.SENTHIL KUMAR, JUDICIAL MEMBER आयकर सं./ITA No. 425/Ahd/2022 ( ा र /Assessment Year : 2018-19) Indra Security & Allied Services Pvt.Ltd. 106, Naranyan Complex, Opp. Havemor Restaurant Navrangpura Ahmedabad-380 009 ब ाम/ Vs. The Income Tax Officer, Ward-2(1)(3) Ahmedabad लेख सं./ज आइआर सं./PAN/GIR No. : PAN: AAACI 7092 R ( ल /Appellant) .. ( / Respondent) ल ओर से/ Appellant by : Ms. Astha Maniar, AR ओर से/Respondent by: Ms. Saumya Pandey Jain, Sr.DR स ु नव ई र ख/Date of Hearing 04/10/2023 घोषण र ख /Date of Pronouncement 22/11/2023 आदेश / O R D E R PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER: This appeal filed by the Assessee as against the appellate order dated 23/09/2022 passed by National Faceless Appeal Centre, Delhi (hereinafter referred to as “NFAC”), arising out of intimation passed u/s.143(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") relating to the Assessment Year (AY) 2018-19. ITA No.425/Ahd/2022 Indra Security & Allied Services P.Ltd. vs. ITO Asst.Year - 2018-19 - 2 - 2. The solitary issue in this appeal is disallowance made u/s.36(1)(va) of the Act on account of delayed payments of PF and ESIC. 3. The ld.counsel Ms. Astha Maniar, appearing for the assessee submitted before us that the due date for payment of ESIC was 21 days of the last day of the calendar month, which was amended to 15 days by amendment in Regulations 31 of the Employees’ State Insurance (General) Regulations, 1950 and applicable with effect from 01/07/2017. However, the CPC has adopted 15/06/2017 as the due date and made disallowance of the payment made by the assessee on 19/06/2017, whereas the actual due date was 21/06/2017. Thus, the disallowance made by the CPC is not in accordance with the provisions of the respective Act and Rules. The ld.counsel for the assessee further submitted that the due date, namely 15/10/2017 which falls on Sunday. The assessee made PF payment on the next working day, namely 16/10/2017, however, CPC made disallowance on the payment made on 16/10/2017 which is against Section 10 of the General Clauses Act, 1897 as well as section 4 of the Limitation Act, 1963. In this context, the ld.counsel for the assessee relied upon the decision of Co- ordinate Bench of Delhi Tribunal in the case of G.D. Foods and Manufacturing (India) (P.)Ltd. vs. Assistant Director of Income- tax reported in (2023) 152 taxmann.com 323 (Delhi – Trib.) and prayed to delete the disallowance. ITA No.425/Ahd/2022 Indra Security & Allied Services P.Ltd. vs. ITO Asst.Year - 2018-19 - 3 - 4. Per contra, the ld.Sr.DR Ms. Saumya Pandey Jain appearing for the Revenue supported the orders passed by the lower authorities. However, if the due date falls on Sunday, being a Government/Gazetted Holiday, the same may be considered in accordance with the provisions of law. 5. We have given our thoughtful consideration and perused the material available on record. It is seen from the impugned order at page Nos.7 & 8, the details of sum received from the employees, statutory due date for payment, actual amount paid and date of payment. It is further seen that the due date of payment of PF for the month of May-2017 is 21/06/2017. However, the CPC has taken the amended provisions, namely 15/06/2017 as the statutory due date and made disallowance u/s.36(1)(va) of the Act. Whereas the assessee remitted the amount on 19/06/2017 which is well within the pre-amended due date prescribed under the PF & ESI Act, which is an apparent mistake on record and liable to be rectified by the Jurisdictional Assessing Officer. 5.1. Further, the assessee made payment of Rs.5,27,454/- on 16/10/2017 which falls on Monday. However, CPC has considered 15/10/2017 as the statutory due date and made disallowance. This issue was considered by the Co-ordinate Bench of the Delhi Tribunal in the case of G.D. Foods and Manufacturing (India) (P.) Ltd.(supra), wherein it was held as follows: ITA No.425/Ahd/2022 Indra Security & Allied Services P.Ltd. vs. ITO Asst.Year - 2018-19 - 4 - “10. The section 10 of the General Clause Act, 1897 reads as under:- "Section 10 in The General Clauses Act, 1897 10 Computation of time --(1) Where, by any (Central Act) or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies. (2). This section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887." 11. Thus, in our opinion, considering the fact that the due date for depositing the contribution of ESIC & EPF falls on Sunday and gazetted holiday, the said delay of one day deserves to be condoned as per Section 10 of General Clauses Act. Further it is also observed that the assessee has no intention not to deposit the contribution of ESI & EPF well within the time, depositing the contribution very next day of Holiday proves the bona-fide of the Assessee. Therefore, in our opinion, the authorities have committed error in disallowing the deposit made with one day delay where the due date under respective acts falls either on Sunday or on gazetted holiday.” 5.2. Respectfully following the above decision, this issue requires adjudication by the Jurisdictional Assessing Officer. Thus, the order passed by the lower authorities are hereby set aside with a direction to the Jurisdictional Assessing Officer to verify the due dates and the actual date of payments made by the assessee applying section 10 of the General Clauses Act and ITA No.425/Ahd/2022 Indra Security & Allied Services P.Ltd. vs. ITO Asst.Year - 2018-19 - 5 - pass an order accordingly. Needless to say that the assessee should co-operate with the Jurisdictional Assessing Officer by providing all the required documents for passing a fresh order. 6. In the result, the appeal filed by the assessee is treated as allowed for statistical purposes. This Order pronounced in Open Court on 22/11/2023 Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 22/11/2023 # .सी.नायर, व.$न.स./T.C. NAIR, Sr. PS आदेश ! " #े" /Copy of the Order forwarded to : 1. ी ा / The Appellant 2. य / The Respondent. 3. स % &' आयकर आय ( / Concerned CIT 4. आयकर आय ( ( ी ) / The CIT(A)- 5. )व*ा+ीय $ $न&', आयकर ी य &'कर , हमदा%ाद / DR, ITAT, Ahmedabad 6. +ा./ फाई / Guard file. आदेशान ु सार/ BY ORDER, स या) 1 $ //True Copy// उ /सहाय ंजी ार (Dy./Asstt.Registrar) आय र ी य र , हमदाबाद / ITAT, Ahmedabad 1. Date of dictation 21.11.2023 (dictation-pad 7-pages attached with the file) 2. Date on which the typed draft is placed before the Dictating Member 21.11.2023 3. Other Member... 4. Date on which the approved draft comes to the Sr.P.S./P.S ... 5. Date on which the fair order is placed before the Dictating Member for pronouncement...... 6. Date on which the fair order comes back to the Sr.P.S./P.S....... 7. Date on which the file goes to the Bench Clerk.......................23.11.23 8. Date on which the file goes to the Head Clerk.........................23.11.23 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order...............