DCIT, Corporate Circle-1(2), Bhubaneswar V. Subhalaxmi Agencies Private Limited, Nayagarh

ITA 62/CTK/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3588 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 16-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D K SHETH
• Keywords: Tax effect
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 21 /CTK/201 8 ASSESSMENT YEAR : 201 4 - 2015 SUBHALAXMI AGENCIES PVT LTD., AT: GOPINATHPUR SAHI , PO: RAJSUNAKHALA, DIST: NAYAGARH. VS. ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR. PAN/GIR NO. AAJCS 7772 D (APPELLANT ) .. ( RESPONDENT ) ITA NO62 /CTK/2018 ASSESSMENT YEAR : 2014 - 2015 ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR VS. SUBHALAXMI AGENCIES PVT LTD., AT: GOPINATHPUR SAHI, PO: RAJSUNAKHALA, DIST: NAYAGARH PAN/GIR NO.AAJCS 7772 D (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI D.K.SHETH, AR REVENUE BY : SHRI SU BH ENDU DATTA , DR DATE OF HEARING : 20 /0 8 / 2018 DATE OF PRONOUNCEMENT : 20 /0 8 / 2018 O R D E R PER N.S.SAINI, AM TH E CROSS APPEAL S FILED BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 14.11.2017 FOR THE ASSESSMENT YEAR 2014 - 2015. 2 ITA NO.21/CTK/2018 ITA NO.6 2 /CTK/2018 ASSESSMENT YEAR : 2014 - 2015 2. THE GRIEVANCE OF THE ASSESSEE IN ITS APPEAL IS THAT THE CIT(A) ERRED IN NOT ALLOWING THE EMPLOYEES CONTRIBUTION TO PF OF RS.95,553/ - U/S.36(1)(VA) OF THE ACT IN VIEW OF THE FACT THAT SAME HAD BEEN PAID BEFORE THE DU E DATE OF FILING OF RETURN U/S.139(1) OF THE ACT AND BEING ALLOWABLE U/S.43B OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER HAS DISALLOWED DEDUCTION FOR EMPLOYEES CONTRIBUTION TO PROVIDENT FUND OF RS.95,535/ - U/S.36(1)(VA) OF THE ACT ON THE GROUND THAT SAME WAS NOT PAID WITHIN THE STIPULATED TIME PROVIDED UNDER THE PF ACT. 4. ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORA TION (TAX APPEAL NO.637 OF 2013 - TAX.SUTRA.COM). 5. BEFORE US, LD A.R. OF THE ASSESSEE FILED A COPY OF ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 132/CTK.2016 FOR THE ASSESSMENT YEAR 2011 - 12, WHEREIN, SIMILAR DISALLOWANCE WAS DELETED BY THE TRIBUNAL AND PRAYED THAT FOLLOWING THE SAME DISALLOWANCE MADE IN THE PRESENT YEAR SHOULD BE DELETED. 6. ON THE OTHER HAND, LD D.R. SUPPORTED THE ORDERS OF LOWE R AUTHORITIES. 3 ITA NO.21/CTK/2018 ITA NO.6 2 /CTK/2018 ASSESSMENT YEAR : 2014 - 2015 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER HAS DISALLOWED DEDUCTION FOR EMPLOYEES CONTRIBUTION TO PROVIDENT FUND OF RS.95,535 / - U/S.36(1)(VA) OF THE ACT ON THE GROUND THAT SAME WAS NOT PAID WITHIN THE STIPULATED TIME PROVIDED UNDER THE PF ACT. 8. ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION (TAX APPEAL NO.637 OF 2013 - TAX.SUTRA.COM). 9. WE, ON PERUSAL OF ASSESSMENT ORDER AT PAGE 2, FIND THAT THE ASSESSEE HAS DEPOSITED THE EMPLOYEES CONTRIBUTION TO PF OF RS.95,535/ - BEFORE FILING OF THE RETURN OF INCOME U/S.139(1) OF THE ACT. WE ALSO FIND THAT RECENTLY THE HONBLE SUPREME COURT IN THE CASE OF PR. CIT VS RAJASTHAN BEVERAGE CORPORATION LTD., (2017) 84 TAXMAN. COM 185 (SC), ON SIMILAR ISSUE HAS HELD AS UNDER: SECTION 43B, READ WITH SECTION 36(1)(VA), OF THE INCOME TAX ACT, 1961 - BUSINESS DISALLOWANCE - CERTAIN DEDUCTION TO BE ALLOWED ONLY ON `ACTUAL PAYMENT (PF & ESI CONSTRUCTION) - HIGH COURT BY THE IMPUGNED ORDER HELD THAT AMOUNT CLAIMED ON PAYMENT OF PF AND ESI HAVING BEEN DEPOSITED ON OR BEFORE DUE DATE OF FILING O F RETURNS, SAME COULD NOT BE DISALLOWED UNDER SECTION 43B OR UNDER SECTION 36(1)(VA) - WHETHER SLP AGAINST SAID IMPUGNED ORDER WAS TO BE DISMISSED - HELD YES (PARA 2) IN FAVOUR OF ASSESSEE . 4 ITA NO.21/CTK/2018 ITA NO.6 2 /CTK/2018 ASSESSMENT YEAR : 2014 - 2015 10. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RAJASTHAN BEVERAGE CORPORATION LTD., (SUPRA), WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE DISALLOWANCE OF RS.95,535/ - MADE U/S 36(1)(VA) OF THE I.T.ACT, 1961 AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. 1 2 . IN THE APPEAL FILED BY THE REVENUE, THE GRIEVANC E OF THE REVENUE IS THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.34,61,636/ - MADE BY THE ASSESSING OFFICER TOWARDS SUPPRESSION OF BRAN PRODUCTS. 1 3 . AT THE OUTSET, THE LEARNED A.R. OF THE ASSESSEE STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.20,00,000/ - , AND, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR NO. 3/2018 DATED 11.7.2018 ISSUED BY THE CBDT . 1 4 . T HE LD. D.R COULD NOT CONTROVERT TH E SUBMISSION OF LD A.R. OF THE ASSESSEE BY BRINGING ANY POSITIVE MATERIAL ON RECORD. 15. AS IT IS NOT IN DISPUTE THAT THE TAX EFFECT IN THE PRESENT APPEAL OF THE REVENUE IS BELOW RS.20 LAKHS, HENCE THE SAME IS NOT 5 ITA NO.21/CTK/2018 ITA NO.6 2 /CTK/2018 ASSESSMENT YEAR : 2014 - 2015 M AINTAINABLE IN VIEW OF CBDT CIRCULAR NO.3 OF 2018 DATED 11.7.2018. THEREFORE, THE APPEAL OF THE REVENUE IS DISMISSED. 1 6 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED ORDER PRONOUNCED ON 20 /0 8 /2018. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 20 /0 8 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE A SSESSEE: SUBHALAXMI AGENCIES PVT LTD., AT: GOPINATHPUR SAHI, PO: RAJSUNAKHALA, DIST: NAYAGARH. 2. THE RE VENUE: ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR. 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//