ACIT, Circle-1(1), Visakhapatnam V. Chandana Brother Shoping Mall, Visakhapatnam

ITA 505/VIZ/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6516 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 21-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S RAVI SHANKAR NARAYAN

Judgement Text

ITA NO.505/VIZAG/2017 M/S. CHANDANA BROTHERS SHOPPING MALL, VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . ' , % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./I.T.A.NO.505/VIZAG/2017 ( / ASSESSMENT YEAR: 2012-13) THE ACIT, CIRCLE - 1(1), VISAKHAPATNAM M/S. CHANDANA BROTHERS SHOPPING MALL, VISAKHAPATNAM [PAN NO. A ADFC1514G ] ( ' / APPELLANT) ( ()' / RESPONDENT) / APPELLANT BY : SHRI S. RAVI SHANKAR NARAYAN, DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF HEARING : 30.10.2017 / DATE OF PRONOUNCEMENT : 15.11.2017 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1 {CIT(A)}, VI SAKHAPATNAM VIDE APPEAL NO.71/2015-16 DATED 18.7.2017 FOR THE ASSESS MENT YEAR 2012-13. ITA NO.505/VIZAG/2017 M/S. CHANDANA BROTHERS SHOPPING MALL, VISAKHAPATNAM 2 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ADD ITION U/S 36(1)(VA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT') RELATING TO THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND, WHICH WAS NOT PAID ON OR BEFORE THE DUE DATE PRESCRIBED UNDER THE ACT AND RU LES. FROM THE DETAILS OF PROVIDENT FUND ATTACHED WITH THE FORM NO .3CD OF THE AUDIT REPORT FILED BY THE ASSESSEE, THE A.O. FOUND THAT T HE EMPLOYEES CONTRIBUTION OF ` 5,82,213/- FOR THE MONTH OF MARCH, 2012 WAS NOT PA ID ON OR BEFORE THE DUE DATE PRESCRIBED UNDER THE RELE VANT ACTS AND RULES. THE A.O. FURTHER OBSERVED THAT AS PER THE PROVISION S OF SECTION 2(24)(X) OF THE ACT, ANY SUM RECEIVED BY THE ASSESSEE FROM H IS EMPLOYEES AS CONTRIBUTIONS TO ANY PROVIDENT FUND OR SUPERANNUATI ON FUND OR ANY FUND SET UP UNDER THE PROVISIONS OF THE EMPLOYEES STATE INSURANCE ACT, 1948 (34 OF 1948), OR ANY OTHER FUND FOR THE WELFARE OF SUCH EMPLOYEES, IS CONSIDERED AS INCOME UNLESS IT IS PAID BY THE DUE D ATES PRESCRIBED UNDER THE RELEVANT ACTS AND RULES AS PER THE PROVISIONS O F SECTION 36(1)(VA) OF THE ACT. EMPLOYEES CONTRIBUTION TO PROVIDENT FUND FOR THE MONTH OF MARCH, 2012 WAS NOT PAID BEFORE THE DUE DATE AND TH EREFORE, THE A.O. HAS TREATED THE SAME AS ASSESSEES INCOME U/S 2(24) (X) OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD. CIT(A) FOLLOWING THE ORDER OF THIS TRIBUNAL IN THE CASE OF EPDC OF AP LTD. VISAKHAPATNAM VIDE I TA ITA NO.505/VIZAG/2017 M/S. CHANDANA BROTHERS SHOPPING MALL, VISAKHAPATNAM 3 NO.609/VIZAG/2014 ALLOWED THE APPEAL OF THE ASSESS EE. THE LD. CIT(A) ALSO FOLLOWED THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. 319 ITR 306 AND THE DECISION O F HONBLE HIGH COURT OF UTTARANCHAL IN THE CASE OF CIT VS. KICHHA SUGAR CO. LTD. 35 TAXMANN 54. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE DE PARTMENT IS IN APPEAL BEFORE THIS TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THIS T RIBUNAL IN THE CASE OF ACIT VS. M/S. EASTERN POWER DISTRIBUTION COMPANY OF AP LTD. IN ITA NO.374/VIZAG/2017 DATED 20.9.2017. IN THE CITED DE CISION, THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE FOLLOWING ITS OW N ORDER IN THE CASE OF EPDC OF AP LTD. IN ITA NO.609/VIZAG/2014, WHICH REA DS AS UNDER: 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL PLACED ON RECORD. THE IDENTICAL ISSUE HAS COME UP BEFORE THIS TRIBUNAL FOR ADJUDICATION FOR THE ASSESSMENT YEAR 2011-12 AND TH E ITAT ALLOWED THE APPEAL OF THE ASSESSEE FOLLOWING THE DECISION OF TH E HONBLE KARNATAKA HIGH COURT IN THE CASE OF ESSAE TERAOKA (P) LTD. VS . DCIT[366 ITR 408] AND THE DECISION OF HONBLE ITAT, HYDERABAD IN THE CASE OF TETRA SOFT (INDIA) PVT. LTD. VS. ACIT(2015) [40 ITR (TRIB) 470] . FOR READY REFERENCE, WE REPRODUCE HEREUNDER THE RELEVANT PARAGRAPH NO.10 OF THE ORDER OF THIS TRIBUNAL CITED SUPRA. 10. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THI S CASE AND ALSO FOLLOWING THE JUDICIAL PRECEDENTS AS DISCUSSED ABOV E, WE ARE OF THE VIEW THAT THERE IS NO DISTINCTION BETWEEN EMPLOYEES ' AND EMPLOYER CONTRIBUTION TO PF, AND IF THE TOTAL CONTRIBUTION I S DEPOSITED ON OR ITA NO.505/VIZAG/2017 M/S. CHANDANA BROTHERS SHOPPING MALL, VISAKHAPATNAM 4 BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S 139(1) OF THE ACT, THEN NO DISALLOWANCE CAN BE MADE TOWARDS EMPLO YEES' CONTRIBUTION TO PROVIDENT FUND. THE CIT(A) AFTER CO NSIDERING 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. 4.1. RESPECTFULLY FOLLOWING THE DECISION OF THIS T RIBUNAL ON THE ASSESSEES OWN CASE FOR THE EARLIER YEAR, WE UPHOLD THE ORDER OF THE LD.CIT AND ALLOW THE APPEAL OF THE ASSESSEE. 6. SINCE THE FACTS OF THE ISSUE IN THE INSTANT CASE ARE THE SAME, RESPECTFULLY FOLLOWING THE DECISION OF THIS TRIBUNA L, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND ALLOW THE APPEAL OF THE ASSES SEE. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT O N 15 TH NOV17. SD/- SD/- ( . ) ( . . ' ) (V. DURGA RAO) (D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 15.11.2017 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ACIT, CIRCLE-1(1), VISAKHAPA TNAM 2. / THE RESPONDENT M/S. CHANDANA BROTHERS SHOPPING MALL, 29-2-22, OPP. JUDGE COURT, JAIL ROAD, VISAKHAPATNAM 3. + / THE PRINCIPAL CIT-1, VISAKHAPATNAM 4. + ( ) / THE CIT (A)-1, VISAKHAPATNAM 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM