Vijay Nirman Company Private Limited , Hyderabad V. Deputy Commissioner of Income Tax , Circle-17(2), Hyderabad

ITA 512/Hyd/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9662 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2019-2020
• Appeal Filed On: 05-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B; 115JB; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD ‘ A ‘ BENCH, HYDERABAD. BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA No.512/Hyd/2021 (Assessment Year : 2019-20) M/s. Vijay Nirman Company Pvt. Ltd., Hyderabad. PAN AABCV6001E Vs. Dy. Commissioner of Income Tax, Circle 17(2), Hyderabad. Appellant Respondent Appellant By : Shri A. Chakradhar, Advocate. Respondent By : Shri Rajendra Kumar (D.R.) Date of Hearing : 27.01.2022. Date of Pronouncement : 27.01.2022. O R D E R Per Shri Duvvuru RL Reddy, J.M. : This assessee's appeal for Asst. Year 2019-20 arises from the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dt.08.10.2021 in proceedings under Section 250 of Income Tax Act, 1961 ('the Act'). The only grievance of the assessee is that the Id. C1T(A) is confirmed the addition of Rs.8,27,36,716/- towards delay of payments of employee's 2 ITA No.512/Hyd/2021 contribution to provident fund and ESI under the respective enactment. 2. Briefly stated facts are that the assessee is a company filed its return of income declaring NIL income under regular assessment. However as per provisions of section 115JB of the Act total income was assessed at Rs.22/25,61,888/-. An intimation u/s. 143(1)(a) of the Act was issued and received by the assessee on 18.06.2020. 3. The particulars furnished in 3CD accompanying the Audit Report u/s.44AB of LT. Act revealed that the employees' contribution to provident fund and ESI had been delayed and was not paid within the due date of payment prescribed under the respective enactments. The Assessing Officer made an addition of Rs.8,27,36,716/- since the assessee made the payment belatedly as per PF and ESI enactment respectively. 4. The contention of the assessee is that the assessee remitted the amount before the due date of filing of return of income, there 3 ITA No.512/Hyd/2021 ought not to have any disallowance. The Id. A.D. has not considered the submissions of the assessee and addition was made an amount of Rs.8,27,36,716. Aggrieved the assessee preferred an appeal before the Id. C1T(A). After considering the submissions of the assessee, Id. CIT(A) confirmed the addition made by the Assessing Officer. 5. On being aggrieved, the assessee preferred an appeal before us. 6. We have heard both the sides and perused the material available on record. The main issue of ESI/PF disallowance of Rs.8,27,36,7616/- made in both the lower proceedings, the rival stands adopted throughout and that the same had been paid before the due date of filing Sec.139(l) return and after the due date prescribed in the corresponding statutes; respectively. We notice in this factual backdrop that the legislature has not only incorporated necessary amendment in Sections 36(l)(va) as well as u/s. 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 01-04-2021 only. It is further not an issue that the 4 ITA No.512/Hyd/2021 foregoing legislative amendments have proposed employers' contribution/ disallowance u/s,43B as against employee's contribution u/s.36(va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 01-04-2021 only. 7. It was observed that the audit party raised an objection that the payments are made beyond the due date of filing of return u/s.139(1) of the Act. But the contention of the assessee is that all the payments were made before filing of the due date of return of income. Therefore, we deem it fit that the matter should go back to the file of Assessing Officer, to examine whether the payments were made within the due date of filing of return or beyond due date of filing of the return. If the payments were made before due date of filing of return, the assessee is entitled to claim deduction u/s.36(1)(va) as well as u/s. 43B of the Act. 8. In the result, the appeal of assessee is allowed for statistical purposes. Pronounced in the open court on 27 th Jan., 2022. Sd/- Sd/- (A.MOHAN ALANKAMONY) (DUVVURU RL REDDY) Accountant Member Judicial Member Hyderabad, Dt. 27.01.2022. * Reddy gp 5 ITA No.512/Hyd/2021 Copy to : 1. M/s. Vijay Nirman Co. Pvt. Ltd., 8-3-333/118, Kamalapuri Phase 1, Srinagar Colony, Hyderabad- 500 073. 2. DCIT, Circle 17(2), Hyderabad. 3. Pr. C I T- , Hyderabad. 4. CIT(A), NFAC, Delhi. 5. DR, ITAT, Hyderabad. 6. Guard File. By Order Sr. Pvt. Secretary, ITAT, Hyderabad.