C. Doctor India Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-1(1)(3), Ahmedabad

ITA 494/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1349 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 02-06-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 01-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B P K
• Section: 43B; 28

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO.494/AHD/2016 / ASSTT. YEAR: 2012-2013 C. DOCTOR INDIA PVT.LTD. PLOT NO.3607 TO 3608, GIDC ESTATE PHASE-IV, VATVA, AHMEDABAD 382 445. PAN : AACI 3673 A VS ITO, WARD - 1(1)(3) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : NONE (WS) REVENUE BY : SHRI B.P.K. PANDA, SR.DR / DATE OF HEARING : 02/06/2016 / DATE OF PRONOUNCEMENT: 03/06/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LD.CIT(A)-1, AHMEDABAD DATED 3.12.2015 PASSED IN TH E ASSTT.YEAR 2012-13. 2. THE GROUNDS TAKEN BY THE ASSESSEE ARE NOT IN CON SONANCE WITH THE RULE 8 OF THE INCOME TAX (APPELLATE TRIBUNAL) R ULES, 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. IN BR IEF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CON FIRMING THE DISALLOWANCE OF RS.5,13,375/- WHICH WAS ADDED BY TH E AO ON THE GROUND THAT THE ASSESSEE HAS COLLECTED CONTRIBUTION FROM THE EMPLOYEES ITA NO.138/AHD/2016 2 TOWARDS PF AND ESIC FUND BUT DID NOT MAKE THE PAYME NT WITHIN THE DUE DATE PROVIDED UNDER THE PROVIDENT FUND AND ESI RULE S. 3. IN RESPONSE TO THE NOTICE OF HEARING NONE HAS CO ME PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, WRITTEN SUBMISSIO NS HAVE BEEN FILED. 4. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE T HROUGH THE WRITTEN SUBMISSION. THE ASSESSEE IN ITS WRITTEN SU BMISSION HAS MADE REFERENCE TO THE DECISIONS OF DIFFERENT HIGH COURTS . IT HAS ALSO MADE REFERENCE TO THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD., 319 ITR 306 (SC). ACCORDING TO THE ASSESSEE, IN THESE DECISIONS, IT HAS BEEN LAID DOWN THAT IF SUCH PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILI NG OF RETURN, THEN, THE DISALLOWANCE UNDER SECTION 43B OF THE INCOME TA X ACT WOULD NOT BE MADE. THE LD.DR POINTED OUT THAT ALL THESE DECISIO NS HAVE BEEN CONSIDERED BY THE HONBLE JURISDICTIONAL HIGH COURT , IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION LTD., 366 ITR 170. THE ASSESSEE HAS BEEN RELYING UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AIMIL LTD. & ORS., 32 1 ITR 508. ACCORDING TO THE ASSESSEE, THIS DECISION HAS BEEN UPHELD BY T HE HONBLE SUPREME COURT ALSO, BUT, THE LD.DR POINTED OUT THAT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPN. LTD.(SUPRA) THE HONBLE GUJARAT HIGH COURT HAS CONSIDERED THIS DECISION, INCLUDING ALOM EXTRUSION LTD. (SUPRA) 5. WE HAVE CONSIDERED CONTENTIONS OF THE LD.DR AND GONE THROUGH THE WRITTEN SUBMISSIONS. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION (SUPRA) HA S HELD THAT IF AN ASSESSEE HAS COLLECTED THE CONTRIBUTION FROM THE EM PLOYEES FOR MAKING PAYMENT TO PF AND ESIC FUNDS, BUT FAILED TO MAKE PA YMENT TILL THE DUE DATE PROVIDED IN THE ACT, THEN, THE ASSESSEE IS NOT ENTITLED FOR ITA NO.138/AHD/2016 3 DEDUCTION. THE OBSERVATION OF THE HONBLE GUJARAT HIGH COURT IN CONCLUDING PARAGRAPHS READS AS UNDER: IN VIEW OF THE ABOVE AND FOR THE REASONS STATED ABO VE, AND CONSIDERING SECTION 36(1)(VA) OF INCOME TAX ACT, 19 61 READ WITH SUB- CLAUSE (X) OF CLAUSE 24 OF SECTION 2, IT WAS HELD T HAT WITH RESPECT TO SUM RECEIVED BY ASSESSEE FROM ANY OF HIS EMPLOYEES TO W HICH PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) OF SECTION (2) APPLIE S, ASSESSEE SHALL BE ENTITLED TO DEDUCTION IN COMPUTING INCOME REFERRED TO IN SECTION 28 WITH RESPECT TO SUCH SUM CREDITED BY ASSESSEE TO EMPLOYE ES' ACCOUNT IN RELEVANT FUND OR FUNDS ON OR BEFORE 'DUE DATE' MENT IONED IN EXPLANATION TO SECTION 36(1)(VA). CONSEQUENTLY, IT WAS HELD THAT LEARNED TRIBUNAL HAD ERRED IN DELETING RESPECTIVE DISALLOWA NCES BEING EMPLOYEES' CONTRIBUTION TO PF ACCOUNT / ESI ACCOUNT MADE BY AO AS, AS SUCH, SUCH SUMS WERE NOT CREDITED BY RESPECTIVE ASSESSEE TO EMPLOYEES' ACCOUNTS IN RELEVANT FUND OR FUNDS (IN P RESENT CASE PROVIDENT FUND AND/OR ESI FUND ON OR BEFORE DUE DAT E AS PER EXPLANATION TO SECTION 36(1)(VA) OF ACT I.E. DATE B Y WHICH CONCERNED ASSESSEE WAS REQUIRED AS AN EMPLOYER TO CREDIT EMPL OYEES' CONTRIBUTION TO EMPLOYEES' ACCOUNT IN PROVIDENT FUND UNDER PROVI DENT FUND ACT AND/OR IN THE ESI FUND UNDER ESI ACT. CONSEQUENTLY, ALL THESE APPEALS ARE ALLOWED AND IMP UGNED JUDGMENT AND ORDERS PASSED BY TRIBUNAL IN DELETING DISALLOWA NCES MADE BY AO WAS HEREBY QUASHED AND SET ASIDE AND DISALLOWANCES OF RESPECTIVE SUMS WITH RESPECT TO PROVIDENT FUND / ESI FUND MADE BY AO WAS HEREBY RESTORED. QUESTIONS RAISED IN PRESENT APPEAL ARE ANSWERED IN FAVOUR OF REVENUE. WITH THIS, ALL THESE APPEALS ARE ALLOWED. ITA NO.138/AHD/2016 4 6. THE LD.CIT(A) HAS FOLLOWED THIS DECISION, AND TH EREAFTER CONFIRMED THE DISALLOWANCE. THE HONBLE GUJARAT HIGH COURT HAS C ONSIDERED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ALOM EXTRU SIONS (SUPRA) REFERRED BY THE ASSESSEE IN ITS WRITTEN SUBMISSIONS. THEREF ORE, WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE L D.CIT(A) ON THIS ISSUE, WHICH IS UPHELD. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 3RD JUNE, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER