Tilokchand Bhabutmal Shah, Solapur V. Assistant Director of Income-Tax, CPC, , Bangalore

ITA 538/PUN/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2307 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2019-2020
• Appeal Filed On: 19-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rule of consistency
• Section: 2; 43B; 139; 143(1); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER Sl. No. ITA No. Name of Appellant Name of Respondent Asst. Year 1 538/PUN/2021 Tilokchand Bhabutmal Shah, 941/43, Suraj Prem Plaza, Phaltan Galli, West Mangalwar Peth, Solapur- 413002. PAN : ADQPS7101P ADIT, CPC, Bangalore. 2019-20 2 539/PUN/2021 M/s. Shraddha Properties, Office No.2, Shraddha Empire, First Floor, 26, Railway Lines, Solapur- 413001. PAN : ABIFS1356G ADIT, CPC, Bangalore. 2019-20 3 548/PUN/2021 Sanjeevani Criticare and Research Centre P. Ltd., Plot No.3, 1 st Floor, Narayan Sankul, Near Mahalaxmi Talkies, Dindori Road, Panchavati, Nashik- 422003. PAN : AAICS9205L DCIT, CPC, Bangalore. 2018-19 4-5 549/PUN/2021 550/PUN/2021 Yogesh Vitthaldas Rathi, Office No.3, 2 nd Floor, Sumangal Builder House, Sadhuvaswani Road, Opp. Jeevan Pradhikaran, Near MICO Circle, Nashik- 422002. Nashik- 422003. PAN : AGLPR8986K DCIT, CPC, Bangalore. 2018-19 2019-20 6 551/PUN/2021 SIP Moulds Private Limited, B-24, MIDC, Ambad Nashik- 422010. PAN : AAPCS0436E ITO, Ward- 2(1), Nashik. 2019-20 2 आदेश / ORDER PER BENCH : These are the six appeals filed by the different assessees against the respective orders of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi for the respective assessment years on record. 2. Since the identical facts and common issues are involved in all the above captioned six appeals, we proceed to dispose of the same by this common order. 3. For the sake of convenience and clarity, the facts relevant to the appeal in ITA No.538/PUN/2021 for the assessment year 2019-20 are stated herein. 4. Briefly, the facts of the case are that during the course of assessment year under consideration, the Assessing Officer made disallowance of Rs.1,46,592/- in the intimation u/s 143(1) of the Income Tax Act, 1961 (‘the Act’) dated 02.07.2020 on the ground that the appellant had not deposited the employees’ share of EPF and ESI etc within due date prescribed under respective Statutes, Assessee by : Shri Anil Maheshwari – (Sl. No.1) None – (Sl. No.2 to 6) Revenue by : Shri M. G. Jasnani Date of hearing : 27.06.2022 Date of pronouncement : 28.06.2022 3 but paid before due date for filing Return of Income under the provisions of section 139(1) of the Act. On appeal before the ld. CIT(A), the ld. CIT(A) confirmed the said disallowance. 5. Being aggrieved, the appellant is in appeal before us in the present appeal. 6. When the matter was called on none appeared on behalf of the appellants listed at Sl. No.2 to 6 of above cause title, despite due service of notice of hearing, except in the case of Tilokchand Bhabutmal Shah (listed at Sl. No.1 of the above cause title). Therefore, we proceed to dispose of all the appeals on merits after hearing the ld. CIT-DR. 7. We heard the ld. CIT-DR and perused the material on record. The only issue raised through various grounds of appeal in this appeal is against the confirmation of disallowance of Rs.1,46,592/- made by the Assessing Officer u/s 36(1)(va) of the Act on account of late deposit of the Employees’ share of EPF and ESI etc. 8. At the outset, ld. AR appearing on behalf of the appellant Tilokchand Bhabutmal Shah listed at Sl. No.1 of above cause title filed a copy of recent decision of Co-ordinate Bench of this Tribunal in the case of Prashant Arun Sangai vs. ADIT in ITA No.466/PUN/2021 for the assessment year 2019-20 order dated 22.06.2022 stating that the identical issue was decided by the 4 Tribunal (supra) in favour of the assessee. Referring to this decision of the Tribunal (supra), he submitted that principle of consistency should be applied to the facts of the present case. The ld. CIT-DR has expressed no objection on this submission of the assessee. 9. Considering the submission of the ld. AR and perusing the recent decision of the Tribunal (supra), we find that the identical issue was came up before this Tribunal in the case of Prashant Arun Sangai (supra) wherein the Tribunal decided the similar issue in favour of the assessee relying on the decision of the Hon’ble Himachal Pradesh High Court in the case of CIT vs. Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP). The relevant paragraphs of the said decision of the Tribunal (supra) are extracted herein under :- “4. We have heard the ld. DR and gone through the relevant material on record. There is no appearance from the side of the assessee despite notice. We are, therefore, proceeding to dispose of the appeal ex parte qua the assessee on merits. 5. It is seen as an admitted position from the impugned order as well as the statement of facts before the ld. first appellate authority that the assessee did deduct employees’ share of EPF and ESI and paid the same after the due date under the respective legislations but before the time stipulated for filing return u/s 139(1) of the Act for the year under consideration. In our opinion, this issue is no more res integra in view of several judgments allowing deduction u/s 36(1)(va) of employees’ share of contribution deposited after due date under the respective Acts but before the date prescribed u/s 139 of the Act. The Hon’ble Himachal Pradesh High Court in CIT vs. Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP) has held that there exists no difference between employees or employer’s contribution and both are to be allowed as deduction if deposited before the due date. 6. At this juncture, it is relevant to mention that the Finance Act, 2021 has inserted Explanation 2 below section 36(1)(va) providing that 5 the provisions of section 43B shall not apply for the purpose of determining the due date under this clause w.e.f. 01.04.2021. The effect of this amendment is that if the amount of employees’ contribution towards EPF, ESI, etc is delayed by an employer beyond the due date under the respective Acts, the disallowance will be called for notwithstanding the fact that it was deposited before the due date u/s 139 of the Act. The Memorandum explaining the provisions of the Finance Bill, 2021, provides that this amendment will take effect from 1st April, 2021 and will, accordingly apply in relation to assessment year 2021- 2022 and subsequent assessment years. Since the assessment year under consideration is 2019-20, which is anterior to the amendment carried out with effect from A.Y. 2021-22, we hold that the position of law as set out by various Hon’ble High Courts including the one in CIT vs. Nipso Polyfabriks Ltd. (supra) squarely applies to the facts and circumstances of the instant case, thereby not warranting any disallowance since the amount in question was admittedly deposited before due date u/s 139(1) of the Act. The addition is therefore, directed to be deleted.” 10. Similarly, the Hon’ble Jurisdictional High Court in the case of CIT vs. Ghatge Patil Transports Ltd. 368 ITR 749 (Bom.) has taken identical view as taken by the Hon’ble Himachal Pradesh High Court in the case of Nipso Polyfabriks Ltd. (supra) and decided the issue in favour of the assessee. 11. Respectfully following the above judicial precedents, we hold that the ratio laid down by the Hon’ble High Courts cited above is squarely applicable to the facts of the present case. Therefore, following the principle of consistency, we direct the Assessing Officer to delete the addition of Rs.1,46,592/- made u/s 36(1)(va) of the Act. 12. In the result, the appeal filed by the assessee in ITA No.538/PUN/2021 for A.Y. 2019-20 stands allowed. 6 ITA Nos.539, 548 to 551/PUN/2021, A. Ys. : 2018-19, 2019-20 : 13. Since the facts and issues involved in all the above six appeals are identical, therefore, our decision in ITA No.538/PUN/2021 for A.Y. 2019-20 shall apply mutatis mutandis to the remaining five appeals of the assessee in ITA Nos.539, 548 to 551/PUN/2021 for A.Y. 2018-19 and 2019-20 respectively. Accordingly, the appeals of the assessee in ITA Nos.539, 548 to 551/PUN/2021 for A.Y. 2018-19 and 2019-20 are allowed. 14. To sum up, all the above six appeals filed by the different assessees stand allowed. Order pronounced on this 28 th day of June, 2022. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 28 th June, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A) concerned. 4. The Pr. CIT concerned. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅ फ़ाइल/ Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.