The Assistant Commissioner of Income Tax, Circle-3(1), Visakhapatnam V. NEM Engineering Projects Private Limited, Visakhapatnam

ITA 458/VIZ/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0272 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 02-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Deemed to accrue or arise in india; Condonation of delay
• Section: 43B; 201; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 4 58 / VIZ /201 9 (ASST. YEAR : 20 1 2 - 1 3 ) ACIT, CIRCLE - 3 (1), VISAKHAPATNAM. V S . M/S. NEM ENGINEERING PROJECTS P RIVATE LTD., D.NO. 55 - 15 - 6, HOUSING BOARD COLONY, KRISHNA COLLEGE ROAD, VISAKHAPATNAM . PAN NO. AACCN 6245 K (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE . DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 05 / 0 9 /201 9 . DATE OF PRONOUNCEMENT : 25 / 0 9 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH E APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1 , VISAKHAPATNAM , DATED 30 /0 1 /201 9 FOR THE ASSESSMENT YEAR 20 1 2 - 1 3 . 2. THERE IS A DELAY OF 70 DAYS IN FILING THIS APPEAL. THE REVENUE HAS FILED AN AFFIDAVIT FOR CONDONATION OF DELAY . WE HAVE G ONE THROUGH THE AFFIDAVIT AND FIND THAT THERE IS A SUFFICIENT CAUSE 2 ITA NO. 4 58 /VIZ/2019 ( M/S. NEM ENGINEERING PROJECTS P. LTD. ) IN NOT FILING THE APPEAL IN TIME . THEREFORE , IT IS A FIT CASE TO CONDONE THE DELAY. ACCORDINGLY, DELAY IS CONDONE D . 3. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE - COMPANY ENGAGED IN THE BUSINESS OF MECHANICAL , ERECTION & ENGINEERING CONTRACTORS . THE ASSESSEE HAS REMITTED THE EMPLOYEES CONTRIBUTION TO PF ACCOUNT BELATEDLY. THEREFORE, THE ASSESSING OFFICER HAS DISALLOWED THE SAME ON THE GROUND THAT THE ASSESSEE HAS NOT REMITTED WITHIN THE PRESCRIBED DUE DATE AS PER THE RELEVANT ACT, HENCE, HE TREATED THE SAME AS DEEMED INCOME OF THE ASSESSEE UNDER SECTION 2(24)(X) R.W.S. 36(1)(VA) OF THE ACT. ACCORDINGLY, HE AD DED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 4 . ON APPEAL , LD.CIT(A) BY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. M/S.EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD., IN ITA NO. 374 /VIZ/201 7 , DATED 2 0 /09 /201 7 DIRECTED THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASSESSEE. 5 . L D. DEPARTMENTAL REPRESENTATIVE HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. NONE APPEARED ON BEHALF OF THE ASSESSEE. 6 . WE HAVE HEARD LD.DR , PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 7 . THE ONLY ISSUE INVOLVED IN THIS APPEAL IS WHETHER THE CONTRIBUTION RECEIVED FROM THE EMPLOYEES PAID BEFORE DUE DATE OF 3 ITA NO. 4 58 /VIZ/2019 ( M/S. NEM ENGINEERING PROJECTS P. LTD. ) FILING OF THE RETURN, IS ALLOWABLE OR NOT. IN THIS CONTEXT, THE ITAT, VISAKHAPATNAM BENCH IN THE CASE OF DCIT VS. M/S.EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD., IN ITA NO. 609/VIZ/2014, DATED 29/07/2016 HELD AS UNDER: - 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORI TIES BELOW. THE A.O. MADE ADDITIONS TOWARDS BELATED PAYMENT OF EMPLOYEES CONTRIBUTIONS TO PF. ACCORDING TO THE A.O., EMPLOYEES CONTRIBUTION TO PROVIDENT FUND IS DEDUCTIBLE UNDER THE PROVISIONS OF SECTION 36(1)(VA) OF THE ACT, IF THE SAME IS PAID ON OR B EFORE THE DUE DATE SPECIFIED UNDER THE PROVIDENT FUND ACT. THE A.O. FURTHER WAS OF THE OPINION THAT IN VIEW OF THE CLEAR PROVISIONS OF SECTION 2(24)(X) R.W.S. 36(1)(VA) OF THE ACT, ANY RECOVERY FROM EMPLOYEES TOWARDS PROVIDENT FUND CONTRIBUTION IS DEEMED TO BE INCOME OF THE ASSESSEE, IF THE EMPLOYER NOT PAID THE SAME TO THE PROVIDENT FUND ACCOUNT OF THE EMPLOYEE WITHIN DUE DATE SPECIFIED UNDER THE PROVISIONS OF PF ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT SECOND PROVISO TO SECTION 43B OF THE ACT PROV IDES THAT NO DEDUCTION SHALL BE ALLOWED UNLESS SUCH SUM IS ACTUALLY BEEN PAID ON OR BEFORE DUE DATE AS SPECIFIED IN EXPLANATION TO 36(1)(VA) OF THE ACT WHICH WAS OMITTED BY THE FINANCE ACT, 2003 W.E.F. 1.4.2004 AND ACCORDINGLY, THERE WAS NO SPECIAL PROVISI ON REGARDING EMPLOYEES CONTRIBUTION TO PF. IT IS FURTHER CONTENDED THAT AS PER THE AMENDED PROVISIONS OF SECTION 43B OF THE ACT, ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO PF SHALL BE ALLOWED, IF THE SAME IS PAID ON OR BEFOR E THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. 6. THE ONLY ISSUE TO BE RESOLVED IS WHETHER THE ASSESSEE WOULD BE ENTITLED TO CLAIM DEDUCTION FOR THE EMPLOYEES CONTRIBUTION MADE TO PF AFTER THE DUE DATE PRESCRIBED UNDER THE PF ACT, BUT BEFORE THE DUE DATE PRESCRIBED FOR FILING OF INCOME TAX RETURN IN THE LIGHT OF THE PROVISIONS CONTAINED IN SECTION 36(1)(VA) OF THE ACT AND SECTION 43B(B) OF THE ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT THERE IS NO DISTINCTION BETWEEN EMPLOYER AND EMPLOYEE CONTRIBUTION AFTER OMISSION OF SECOND PROVISO OF SECTION 43B OF THE ACT BY FINANCE ACT, 2003 W.E.F. 1.4.2004. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THERE IS NO DIFFERENCE BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION UN DER THE PF ACT. SECTION 6 OF PROVIDENT FUND ACT PROVIDES FOR CONTRIBUTION AND THE MANNER IN WHICH SUCH CONTRIBUTION SHALL BE MADE. PARAGRAPH 30 OF THE PF SCHEME PROVIDES FOR PAYMENT OF CONTRIBUTIONS. AS PER THE SAID SCHEME, THE EMPLOYER AT THE FIRST INS TANCE SHALL MAKE THE TOTAL CONTRIBUTION INCLUDING EMPLOYEES SHARE. PARAGRAPH 32 PROVIDES FOR RECOVERY OF MEMBER SHARE OF CONTRIBUTION AND AS PER THE SCHEME, THE EMPLOYER CAN RECOVER THE EMPLOYEES SHARE FROM THE 4 ITA NO. 4 58 /VIZ/2019 ( M/S. NEM ENGINEERING PROJECTS P. LTD. ) WAGES PAID TO THE EMPLOYEE. THEREFORE, AS PER THE PF ACT AND SCHEME OF CONTRIBUTIONS, THE CONTRIBUTIONS MEANS AND INCLUDE BOTH EMPLOYEES AND EMPLOYERS SHARE. SIMILARLY, SECTION 2(C) OF THE PROVIDENT FUND ACT DEFINES THE CONTRIBUTION TO MEAN A CONTRIBUTION PAYABLE IN RESPECT OF A MEMBER UNDER T HE SCHEME OR THE CONTRIBUTION PAYABLE IN RESPECT OF AN EMPLOYEE TO WHOM THE SCHEME APPLIES. THERE IS A PRESCRIBED MODE OF PAYMENT OF CONTRIBUTIONS UNDER THE PF ACT. UNDER THE SAID ACT, THE EMPLOYER SHALL CONTRIBUTE BOTH EMPLOYEES AND EMPLOYER SHARE ALONG WITH ADMINISTRATIVE CHARGES BEFORE THE DUE DATE SPECIFIED UNDER THE PF ACT. THE ACT PRESCRIBED ONLY ONE DUE DATE FOR DEPOSITING THE CONTRIBUTION I.E. 15 TH OF SUBSEQUENT MONTH WITH THE GRACE PERIOD OF 5 DAYS WHICH INDICATES THAT THERE IS NO DIFFERENCE BETWEEN EMPLOYEE AND EMPLOYER CONTRIBUTION. IF THE LEGISLATURE INTENDS TO DIFFERENTIATE EMPLOYEES AND EMPLOYER CONTRIBUTION, THEN THERE WOULD HAVE BEEN TWO DUE DATES LIKE IN THE CASE OF INCOME TAX ACT. THEREFORE, FROM THE ABOVE, IT IS CLEAR THAT THE PROVIDENT FUND ACT DOES NOT DIFFERENTIATE EMPLOYEES AND EMPLOYER CONTRIBUTION AND CONTRIBUTION MEANS BOTH EMPLOYEES AND EMPLOYER CONTRIBUTION UNDER THE PF SCHEME. 7. SECTION 43B OF THE ACT PROVIDES FOR CERTAIN DEDUCTIONS TO BE ALLOWED ONLY ON ACTUAL PAYMENT BASIS. SUB CLAUSE (B) OF SECTION 43B OF THE ACT COVERS ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNU ATION FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF THE EMPLOYEES. THE PROVISO TO SECTION PROVIDES THAT ANY SUM PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE M ADE UNDER THE PROVISIONS OF SECTION 43B OF THE ACT. A CAREFUL CONSIDERATION OF SECTION 43B OF THE ACT, IT IS CLEAR THAT AN EXTENSION IS GRANTED TO THE ASSESSEE TO MAKE THE PAYMENT OF PF CONTRIBUTIONS OR ANY OTHER FUND TILL THE DUE DATE OF FURNISHING RETUR N OF INCOME U/S 139(1) OF THE ACT. THEREFORE, IN OUR OPINION, THERE IS NO DIFFERENCE BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION TO PF AND IF SUCH CONTRIBUTION IS MADE ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN DE DUCTION IS TO BE ALLOWED UNDER THE PROVISIONS OF SECTION 43B OF THE ACT. 8. THE HONBLE KARNATAKA HIGH COURT, IN THE CASE OF ESSAE TERAOKA (P) LTD. VS. DCIT 366 ITR 408 TOOK THE VIEW THAT THE WORD CONTRIBUTION OCCURRING IN SECTION 43B OF THE ACT WOULD IN CLUDE EMPLOYEES CONTRIBUTION TO PF IN THE LIGHT OF THE DEFINITION OF THE WORD CONTRIBUTION AS PER THE PROVISIONS OF SECTION 2(C) OF THE PF ACT. AS PER THE SAID SECTION, CONTRIBUTION WOULD MEAN BOTH EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION. ACC ORDINGLY, IT WAS HELD THAT THE PROVISIONS OF SECTION 43B OF THE ACT ALLOWING DEDUCTION FOR PAYMENT MADE BEFORE THE DUE DATE OF FILING OF INCOME TAX RETURN CANNOT BE IGNORED. SIMILARLY, THE ITAT, HYDERABAD TRIBUNAL IN THE CASE OF TETRA SOFT (INDIA) PVT. LTD . VS. ACIT (2015) 40 ITR (TRIB) 470 HELD THAT WHEN ASSESSEE REMITTED EMPLOYEES CONTRIBUTION TO PF WITHIN DUE DATE OF FILING RETURN OF INCOME U/S 139(1) OF THE ACT, AMOUNT OF 5 ITA NO. 4 58 /VIZ/2019 ( M/S. NEM ENGINEERING PROJECTS P. LTD. ) EMPLOYEES CONTRIBUTION TO PF CANNOT BE DISALLOWED. SIMILAR VIEW WAS UPHELD BY TH E CHENNAI BENCH OF THE ITAT, IN THE CASE OF ACIT VS. FARIDA SHOES PVT. LTD. (2016) 46 CCH 29. THE COORDINATE BENCH HELD THAT IF ASSESSEE HAD NOT DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND UP TO THE DUE DATE AS PRESCRIBED UNDER RELEVANT STATUT E, BUT BEFORE DUE DATE OF FILING OF RETURN NO DISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE ACT. IN THE CASE OF CIT VS. UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD. 35 TAXMAN 616, THE HONBLE HIGH COURT OF RAJASTHAN, AFTER REFERRI NG TO THE APEX COURT DECISION IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306 & CIT VS. VINAY CEMENT LTD. HELD THAT THE DEDUCTIONS SHOULD BE ALLOWED FOR THE PAYMENT OF EMPLOYEES CONTRIBUTION MADE BEFORE THE DUE DATE OF FILING OF RETURN. SIMILARLY , IN THE CASE OF CIT VS. STATE BANK OF BIKANER, THE HONBLE RAJASTHAN HIGH COURT HELD THAT CONTRIBUTION PAID AFTER THE DUE DATE UNDER THE RESPECTIVE ACT, BUT BEFORE FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT CANNOT BE DISALLOWED U/S 43B OF THE ACT A ND OR U/S 36(1)(VA) OF THE ACT. 9. THE LD. D.R. RELIED UPON THE DECISION OF HONBLE HIGH COURT OF KERALA, IN THE CASE OF CIT VS. MERCHEM LTD, REPORTED IN (2015) 378 ITR 443 AND SUBMITTED THAT EMPLOYEES CONTRIBUTION TO PROVIDENT FUND IS ALLOWED AS DEDUCTIO N, IF THE SAME IS DEPOSITED ON OR BEFORE THE DUE DATE SPECIFIED UNDER THE PROVISIONS OF PROVIDENT FUND ACT. THE D.R. ALSO RELIED UPON THE DECISION OF GUJARAT HIGH COURT, REPORTED IN (2014) 366 ITR 170, WHEREIN THE HONBLE GUJARAT HIGH COURT HELD THAT SINCE ASSESSEE HAD NOT DEPOSITED SAID CONTRIBUTION TO RESPECTIVE FUND ACCOUNT ON THE DATE AS PRESCRIBED IN EXPLANATION TO SECTION 36(1)(VA) OF THE ACT, DISALLOWANCE MADE BY THE A.O. WAS JUST AND PROPER. THOUGH, THE D.R. RELIED UPON CERTAIN JUDICIAL PRECEDENTS W HICH ARE IN FAVOUR OF THE REVENUE, IN VIEW OF THE DECISION OF HONBLE SUPREME COURT, IN THE CASE OF CIT VS. M/S. VEGETABLES PRODUCTS LTD. REPORTED IN 88 ITR 192, WHEREIN THE HONBLE SUPREME COURT HELD THAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVIS ION ARE POSSIBLE THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED, THEREFORE, BY RESPECTFULLY FOLLOWING THE DECISION OF SUPREME COURT, WHEN DIVERGENT VIEWS ARE EXPRESSED BY DIFFERENT JUDICIAL FORUMS, WE PREFER TO FOLLOW THE VIEWS EXPRESSED BY T HE COURTS WHICH ARE IN FAVOUR OF THE ASSESSEE. 10. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO FOLLOWING THE JUDICIAL PRECEDENTS AS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THERE IS NO DISTINCTION BETWEEN EMPLOYEES AND EMPLOYER CONTRIBUTION TO PF, AND IF THE TOTAL CONTRIBUTION IS DEPOSITED ON OR BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE MADE TOWARDS EMPLOYEES CONTRIBUTION TO PROVIDENT FUND. THE CIT(A) AFTER CONSIDERING THE RELEVANT DETAILS RIGHTLY DELETED THE ADDITIONS MADE BY THE A.O. WE DO NOT SEE ANY REASONS TO INTERFERE WITH THE ORDER OF THE CIT(A). HENCE, WE INCLINED TO UPHOLD THE CIT(A) ORDER AND DISMISS THE APPEAL FILED BY THE REVENUE. 6 ITA NO. 4 58 /VIZ/2019 ( M/S. NEM ENGINEERING PROJECTS P. LTD. ) 8 . THEREFORE, RESPECTFU LLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. EASTERN POWER DISTRIBUTION COMPANY LTD . (SUPRA), WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD.CIT(A). THUS, THIS APPEAL FILED BY THE REVENUE IS DISMIS SED. 9 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 5 T H DAY OF SEP . , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 5 T H SEP . , 201 9 . VR/ - COPY TO: 1. THE ASSESSEE - M/S. NEM ENGINEERING PROJECTS PRIVATE LTD., D.NO. 55 - 15 - 6, HOUSING BOARD COLONY, KRISHNA COLLEGE ROAD, VISAKHAPATNAM. 2. THE REVENUE ACIT, CIRCLE - 3 (1), VISAKHAPATNAM. 3. THE PR. CIT - 1 , VISAKHAPATNAM. 4. THE CIT(A) - 1 , VISAKHAPATNAM . 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.