DCIT, New Delhi V. M/s. PEB Steel Lloyd (India) Ltd., New Delhi

ITA 5610/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1053 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 01-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL SENIOR
• Keywords: Set aside
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5610/DEL./2015 (ASSESSMENT YEAR : 2012-13) DCIT, CIRCLE 19 (2), VS. M/S. PEB STEEL LLOYD (INDI A) LTD., NEW DELHI. 2, PUNJSTAR PREMISES, KALKAJI INDL. AREA, KALKAJI, NEW DELHI 110 019. (PAN : AAECP0564F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.V.S.R. KRISHNA, CA REVENUE BY : SHRI NAINA SOIN KAPIL, SENIOR DR DATE OF HEARING : 29.11.2018 DATE OF ORDER : 30.11.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, DCIT, CIRCLE 19 (2), NEW DELHI (HERE INAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESEN T APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 27.07.2015 PASSE D BY LD. CIT (APPEALS)-7, NEW DELHI QUA THE ASSESSMENT YEAR 2012 -13 ON THE FOLLOWING GROUNDS INTER ALIA THAT:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER OF RS.47,78,762/- OF PF CONTRIBUT ION ITA NO.5610/DEL./2015 2 AND RS.6,76,061/- OF ESIC TOTALING TO RS.54,54,823/ - IS NOT ALLOWABLE AS DEDUCTION U/S 36(1)(VA) AND IS ASSESSEES INCOME AS PER PROVISIONS OF SECTION 2(24 )(X) OF THE INCOME-TAX ACT, 1961 BY IGNORING THE EXPLANATION GIVEN TO SECTION 36(1)(VA) OF THE INCOM E- TAX ACT, 1961. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER MADE AD DITION OF RS.54,54,823/- (RS.47,78,762/- OF PF CONTRIBUTION A ND RS.6,76,061/- OF ESIC) BY MAKING DISALLOWANCE ON AC COUNT OF LATE DEPOSIT OF PF AND ESI CONTRIBUTION U/S 36(1)(VA) RE AD WITH SECTION 2(24)(X) OF THE INCOME-TAX ACT, 1961 (FOR SHORT 'TH E ACT'). 3. THE ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY ALL OWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, THE ASSESSEE COMPANY HAS NOT DEPOS ITED EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND AND E SI WITHIN DUE DATE BUT BEFORE FILING OF THE INCOME-TAX RETURN ALO NG WITH INTEREST ITA NO.5610/DEL./2015 3 AND PENALTY FOR DELAYED PAYMENTS, WHICH IS TABULATE D AS UNDER FOR READY PERUSAL :- MARCH EMPLOYEES CONTRIBUTION TO PROVIDENT FUND DUE DATE OF DEPOSIT ACTUAL DATE OF DEPOSIT AMOUNT DUE & DEPOSITED AMOUNT DUE AND DEPOSITED APRIL 11 372280 31543 15 MAR 11 24 MAR 11 JUNE 11 389568 22786 15 JUNE 11 16 JUNE 11 MAY 11 421356 30712 15 JUL 11 25 JUN 11 JUL 11 400326 34263 15 AUG 11 24 OCT 11 AUG 11 405709 36007 15 SEPT 11 24 OCT 11 SEPT 11 39 3551 39340 15 OCT 11 24 OCT 11 OCT 11 404074 33340 15 NOV 11 18 NOV 11 NOV 11 396285 35581 15 DEC 11 4 JAN 11 DEC 11 397642 34260 15 JAN 12 17 JAN 12 JAN 12 416350 32569 15 FEB 12 15 FEB 12 FEB 12 424317 33860 15 MARCH 12 14 MAY 12 MAR 12 408905 3305 7 15 APRIL 12 14 MAY 12 4830363 397318 MARCH EMPLOYEES CONTRIBUTION TO EMPLOYEES STATE INSURANCE ACTUAL DATE OF DEPOSIT AMOUNT DEPOSITED DUE DATE OF DEPOSIT APRIL 11 68810 21 MAR 11 24 MAY 11 JUNE 11 62017 21 JUNE 11 24 JUN 11 MAY 11 71804 21 JUL 11 24 JUN 11 JUL 11 66613 21 AUG 11 24 NOV 11 AUG 11 69245 21 SEPT 11 24 NOV 11 SEPT 11 69115 21 OCT 11 24 NOV 11 OCT 11 67662 21 NOV 11 24 NOV 11 NOV 11 67000 21 DEC 11 4 JAN 12 DEC 11 66571 21 JAN 12 19 JAN 12 JAN 12 67976 21 FEB 12 18 FEB 12 FEB 12 67143 21 MARCH 12 18 MAY 12 MAR 12 66652 21 APRIL 12 21 MAY 12 810608 6. IT IS SETTLED PRINCIPLE OF LAW THAT AMOUNT DEPOS ITED BY THE ASSESSEE ON ACCOUNT OF CONTRIBUTION TOWARDS PF & ES I WOULD QUALIFY FOR DEDUCTION EVEN THOUGH PAID AFTER THE DU E DATES ITA NO.5610/DEL./2015 4 PRESCRIBED UNDER THE PROVIDENT FUND AND ESI ACT BUT BEFORE FILING OF THE INCOME-TAX RETURN. IN THE INSTANT CASE, ASS ESSEE HAS ADMITTEDLY DEPOSITED THE AMOUNT OF PROVIDENT FUND A ND ESI BEFORE FILING THE RETURN QUA YEAR UNDER ASSESSMENT AS TABU LATED IN THE PRECEDING PARA. 7. RELIANCE IN THIS REGARD MAY BE PLACED ON DECISIO N RENDERED BY HONBLE SUPREME COURT IN CIT VS. VINAY CEMENT LTD. (2009) 313 ITR (ST.) 1 (SC) WHEREIN IT IS HELD THAT NO DISALLOWANCE COULD BE MADE IF THE PAYMENTS ARE MADE BEFORE THE DUE DATE OF FILING OF THE RETURN. 8. IDENTICAL ISSUE HAS ALSO BEEN DECIDED BY THE HONBLE DELHI HIGH COURT IN CASE CITED AS CIT VS. AIMIL LTD. (201 0) 321 ITR 508 (DELHI) WHEREIN THE HONBLE HIGH COURT AFTER DISCUSSING TH E PROVISIONS CONTAINED U/S 36 (1)(VA) READ WITH PROVI SIONS CONTAINED U/S 2(24)(X), 43B PROVISO (I) & (II) HELD THAT IF THE EMPLOYEES' CONTRIBUTION IS NOT DEPOSITED BY THE DUE DATE PRESC RIBED UNDER THE RELEVANT ACTS AND IS DEPOSITED LATE, THE EMPLOYER N OT ONLY PAYS INTEREST ON DELAYED PAYMENT BUT CAN INCUR PENALTIES ALSO, FOR WHICH SPECIFIC PROVISIONS ARE MADE IN THE PROVIDENT FUND ACT AS WELL AS THE ESI ACT. THEREFORE, THE ACT PERMITS THE EMPLOYE R TO MAKE THE DEPOSIT WITH SOME DELAYS, SUBJECT TO THE AFORESAID CONSEQUENCES. IN SO FAR AS THE INCOME-TAX ACT IS CONCERNED, THE ASSE SSEE CAN GET THE ITA NO.5610/DEL./2015 5 BENEFIT IF THE ACTUAL PAYMENT IS MADE BEFORE THE RE TURN IS FILED, AS PER THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN VINAY CEMENT [2009] 313ITR (ST.) 1. 9. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FOL LOWING THE LAW LAID DOWN BY HONBLE SUPREME COURT IN CIT VS. VINAY CEMENT LTD. (SUPRA) AND HONBLE DELHI HIGH COURT IN CIT VS. AIMIL LTD. (SUPRA) AND IN VIEW OF THE FACT THAT THE ENTIRE PA YMENTS ON ACCOUNT OF EMPLOYEES CONTRIBUTION OF PF & ESI H AS BEEN DEPOSITED BY THE ASSESSEE WELL BEFORE THE DUE DATE OF FILING THE RETURN, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE AO ON ACCO UNT OF DISALLOWANCE OF RS.54,54,823/- TOWARDS PF AND ESI C ONTRIBUTION. SO, FINDING NO ILLEGALITY OR PERVERSITY IN THE FIND ING RETURNED BY THE LD. CIT (A), THE APPEAL FILED BY THE REVENUE IS HER EBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF NOVEMBER, 2018. SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 30 TH DAY OF NOVEMBER , 2018 TS ITA NO.5610/DEL./2015 6 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-7, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.