DEPUTY COMMISSIONER OF INCOME TAX 15(3)1, MUMBAI V. RAY ENGINEERING PRIVATE LIMITED , MUMBAI

ITA 4749/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5764 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 05-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI G. MANJUNATHA , AM / I.T.A. NO. 4749 / MUM/ 2017 ( / ASSESSMENT YEARS: 2013 - 14 ) THE DY. COMMISSIONER OF INCOME TAX 15(3)(1) ROOM NO.451, 4 TH FLOOR, AAYAKAR BHAVAN, MAHARSHI KARVE ROAD, MUMBAI - 400703 / VS. M/S. RAY ENGINEERING PVT. LTD. H - 220, 2 ND FLOOR, IIP, ABOVE VASHI RAILWAY STATION, VASHI, NAVI MUMBAI - 400703 ./ ./ PAN/GIR NO. : AA DCR 3859 G ( / APPELL ANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 1 7 .01.2019 /DATE OF PRONOUNCEMENT: 30. 01.2019 / O R D E R PER AMARJIT SINGH, JM: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 27.04.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 24 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2013 - 14 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE OF NON - PAYMENT OF CONTRIBUTION TO FUNDS BY THE EMPLOYEES IN TE RMS OF SECTION 36(1)(VA) OF THE I.T.ACT WHEN THE CIRCULAR NO.22/2015 DATED 17.12.2015 ISSUED BY THE CBDT SPECIFICALLY HIGHLIGHTED THAT THE CIRCULAR DOES NOT APPLY TO CLAIM OF DEDUCTION RELATING TO EMPLOYEES CONTRIBUTION TO WELFARE FUNDS WHICH ARE GOVERNED BY SECTION 36(1) OF THE IT ACT. 2. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. REVENUE BY: SHRI MANOJ KUMAR SINGH ( SR. DR) ASSESSEE BY : NONE ITA NO. 4749 /M/2017 A. Y. 2013 - 14 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING T OTAL INCOME TO THE TUNE OF RS.14,76,11,310/ - . THE RETURN WAS PROCESSED U/S.143(1) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) . THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. NOTICES U/S.14 2 (1) AND 143(2) OF THE ACT WERE ISSUED AND SERV ED UPON THE ASSESSEE. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF CIVIL AND STRUCTURAL WORKS, EARTH EXCAVATION WORK, ROAD CONSTRUCTION AND ELECTRICAL AND MECHANICAL WORK ETC. THE ASSESSEE DEDUCTED THE PROVIDENT FUND AND MADE THE PA YMENT DELAYED TO THE PROVIDENT FUND. THE TOTAL PAYMENT WAS TO THE TUNE OF RS.2,36,70,303/ - . SINCE THE PAYMENT WAS MADE DELAYED, THEREFORE, THE SAID DELAYED PAYMENT WAS ADDED TO THE INCOME OF THE ASSESSEE. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.17,12,81,610/ - AND ACCORDINGLY TAXED. THE BOOK PROFIT WAS ASSESSED TO THE TUNE OF RS.14,53,08,939/ - . FEELING AGGRIEVED THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) WHO ALLOWED THE CLAIM OF THE ASSESSEE, THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1: - 4. UNDER THIS ISSUE THE REVENUE HAS CHALLENGED THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE IN CONNECTION WITH DELAYED CONTRIBUTION TO THE PROVIDENT FUND. THE LEARNED REPRESENTATIVE OF THE DEPARTMENT HAS ARGUED TH AT THE ASSESS EE FAILED TO DEPOSIT THE CONTRIBUT ION OF PROVIDENT FUND OF EMPLOYEES TO THE PROVIDENT FUND WELL IN TIME , THEREFORE, THE ASSESSING ITA NO. 4749 /M/2017 A. Y. 2013 - 14 3 OFFICER HAS RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE AND ADDED THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE BUT THE CIT(A) HAS WRONGLY AL LOWED THE CLAIM OF THE ASSESSEE, T HEREFORE, THE FINDING OF THE CIT(A) IS WRONG , AGAINST LAW AND FACTS AND IS LIABLE TO SET ASIDE. HOWEVER, THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CONTRIBUTION OF EMPLOYEE S TO PROVIDENT FUND OF WAS DEPOSITED BEFORE THE LAST DATE OF FILING OF THE RETURN OF INCOME , THEREFORE, THE CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. IN VIEW OF THE ARGUMENTS ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE REC ORD, WE NOTICED THAT THE FACTS OF THE DEPOSIT THE CONTRIBUTION OF EMPLOYEES PROVIDENT FUND WITH THE PROVIDENT FUND BEFORE THE LAST DATE OF FILING THE RETURN IS NOT IN DISPUTE. IF THE CONTRIBUTION OF THE EMPLOYEES PROVIDENT FUND BE DEPOSITED BEFORE THE LAST DATE OF FILING THE RETURN OF INCOME THEN THE CLAIM OF THE ASSESSEE IS NOT LIABLE TO BE DECLINED I N VIEW OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN CASE TITLED AS CIT VS. HINDUSTAN ORGANICS CHEMICALS LTD. THE CIT(A) HAS ALSO RELIED UPON THE DECISION OF ASSESSEES OWN CASE FOR A.Y.2012 - 13 VIDE ITA NO.399 OF 2012 DATED 11 TH JULY 2014. THE FACTS ARE NOT DISTINGUISHABLE AT THIS STAGE. THE FACTUAL POSITION IS THE SAME, THEREFORE, TAKING INTO ACCOUNT OF ALL THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE C IT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. ACCORDINGLY, THESE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ITA NO. 4749 /M/2017 A. Y. 2013 - 14 4 5 . IN THE RESULT, THE APPEA L OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30. 1.2019 . SD/ - SD/ - ( G. MANJUNATHA ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED 30. 01.2019 MP COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//