M/s. Neolite ZKW Lightings Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 5549/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58694 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-02-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Assessee Lawyers: V SACHDEV
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 5549/DEL/2011 ASSESSMENT YEAR: 2008-09 NEOLITE ZKW LIGHTINGS PVT. LTD., VS. ASSISTANT CIT, B-24, MAYAPURI IND. AREA, CIRCLE 13(1), PHASE-I, NEW DELHI. NEW DELHI. (PAN: AABCN4157F) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI V. SACHDEV , FCA RESPONDENT BY: SHRI RS NEGI, SR. DR DATE OF HEARING : 02.02.2012 DATE OF PRONOUNCEMENT : 17.02.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 18.08.2011 PASSED FOR ASSESSMENT YEAR 2008-09. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.2,87,597 AND RS.2 5,508, WHICH WERE DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND T HAT ASSESSEE FAILED TO DEPOSIT THE ABOVE AMOUNTS REPRESENTING EMPLOYEES S HARE IN THE ESI AND PF ACCOUNTS RESPECTIVELY, WITHIN THE DUE DATE PROVIDED UNDER THOSE ACTS. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT H ON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. AMIL LIMITED REPORTED IN 321 ITR 508 AS WELL AS IN 2 THE CASE OF CIT VS. PM ELECTRONICS REPORTED IN 313 ITR 161 HAS HELD THAT IF THE PAYMENTS IN THE PF AND ESI ACCOUNTS WERE MADE B Y THE ASSESSEE INCLUDING EMPLOYEES CONTRIBUTION BEFORE THE DUE DA TE OF FILING OF THE RETURN THEN THE AMOUNT PAID AS SUCH WOULD BE ALLOWED AS A DEDUCTION TO THE ASSESSEE. HE PLACED ON RECORD COPY OF THE HON'BLE H IGH COURTS DECISION IN THE CASE OF CIT VS. AMIL LIMITED(SUPRA). HE FURTHER PLACED ON RECORD THE DETAILS IN TABULAR FORM INDICATING THE PAYMENT OF E MPLOYEES CONTRIBUTION IN THE PF ACCOUNT AS WELL AS IN THE STATE INSURANCE. O N THE STRENGTH OF THESE DETAILS, HE POINTED OUT THAT PAYMENT WAS MADE BEFOR E THE DUE DATE OF FILING OF THE RETURN. ON THE OTHER HAND, LEARNED DR SUBMIT TED THAT THE LEARNED CIT(APPEALS) HAS CONFIRMED THE DISALLOWANCE ON THE STRENGTH OF ITAT, CALCUTTA BENCHS ORDER PASSED IN THE CASE OF DCIT V S. BENGAL CHEMICALS & PHARMACEUTICALS LTD. SHE PLACED ON RECORD COPY OF THE ITATS ORDER. SHE SUBMITTED THAT ITAT HAS OBSERVED THAT DUE DATE APPE ARING IN SEC. 36(1)(VA) OF THE ACT IS THE DATE BY WHICH ASSESSEE IS REQUIRE D TO CREDIT EMPLOYEES CONTRIBUTION TOWARDS ESI ACCOUNT AS AN EMPLOYER. TH IS DUE DATE CANNOT BE POSTPONED TO THE DUE DATE PROVIDED IN SEC. 139(1) F OR FILING OF THE RETURN. SHE FURTHER CONTENDED THAT THE ITAT HAS OBSERVED THAT T HOUGH SEC. 43B STARTS WITH A NON-OBSTANTE CLAUSE AND HAS A OVERRIDING EFF ECT OVER THE OTHER CLAUSES 3 BUT IT WILL APPLY ONLY WHEN A DEDUCTION IS OTHERWIS E ALLOWABLE UNDER SEC. 43B OF THE ACT. 2. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE RETURN WAS FILED BY THE ASSES SEE ON 30 TH SEPTEMBER 2008. THIS IS ASSESSMENT YEAR 2008-09. THE PAYMENTS IN THE PF AND ESI ACCOUNTS WERE MADE BY THE ASSESSEE BEFORE 24.4.2008 . FROM THE DETAILS PLACED ON RECORD, IT REVEALS THAT THE HIGHEST DELAY IN MAKING THE PAYMENT IN ESI ACCOUNT IS OF 31 DAYS I.E. THE PAYMENT DUE ON 2 1.3.2008 WAS PAID ON 21.4.2008. IN ALL OTHER PAYMENTS, THE DELAY VARIES IN BETWEEN 2 TO 4 DAYS. IN ANY CASE, THE PAYMENTS HAVE BEEN MADE BEFORE THE DU E DATE OF FILING OF THE RETURN. THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TWO DECISIONS OF THE HON'BLE JURISDICTIONAL HIG H COURT AND WE CANNOT GIVE WEIGHTAGE TO THE ORDER OF THE ITAT IN SUCH SIT UATION. RESPECTFULLY FOLLOWING THE DECISIONS OF HON'BLE DELHI HIGH COURT , WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE DISALLOWANCE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 17.02.201 2 SD/- SD/- ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17/02/2012 MOHAN LAL 4 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR