M/s. Benara Udyog Limited., Kanpur V. Asstt. Commissioner of Income Tax, Kanpur

ITA 623/LKW/2012

• Counselvise Citation: 62323714 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 24-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAI KUMAR
• Assessee Lawyers: S S GUPTA
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 623/LKW/2012 ASSESSMENT YEAR: 2009 - 10 M/S BENARA UDYOG LIMITED 15/21, CIVIL LINES, K ANPUR V. ASSTT. CIT CENTRAL CIRCLE KANPUR PAN: AAACB6515A (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. S.S. GUP T A, FCA & SHRI. ASHISH JAISWAL, ADVOCATE RESPONDENT BY: SHRI. AJAI KUMAR, D.R. DATE OF HEARING: 26 0 5 2014 DATE OF PRONOUNCEMENT: 23 0 6 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON A SOLITARY GROUND THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE UNDER SECTION 36(1)(VA) OF THE INCOME - TAX ACT, 1961 ( HEREINAFTER CALLED IN SHORT THE ACT') AMOUNTING TO RS.2,61,347/ - WITHOUT LOOKING TO THE FACT THAT THE CONTRIBUTION OF PF/ESI WAS DEPOSITED WITHIN THE GRACE PERIOD RANGING FROM 2 TO 5 DAYS. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE CONTRIBUTION OF THE EMPLOYEES TOWARDS PF AND ESI WAS DEPOSITED WITHIN THE GRACE PERIOD FROM THE DUE DATE PRESCRIBED UNDER THE RELEVANT ACT I.E. RANGING BETWEEN 2 TO 5 DAYS. THEREFORE, DEDUCTION OF THE SAME SHOULD HAVE BEEN ALLOWED. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED RELIANCE UPON THE FOLLOWING JUDGMENTS IN SUPPORT PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : OF HIS CONTENTION THAT EVEN THE PAYMENT OF PF AND ESI CONTRIBUTION IF MADE BEFORE FILING OF THE RETURN OF INCOME, THE SAME SHOULD HAVE BEEN ALLOWED UNDER SECTION 43B OF THE ACT: - ( I ) SWARUP CHEMICALS PVT. LTD. VS. DY. CIT IN I.T.A. NO.11 OF 2009 (ALL.) ( II ) CIT & ANOTHER VS. MANOJ KUMAR SINGH [2012] 349 ITR 230 (ALL) ( III ) DCIT VS. BENARA BEARINGS & PISTONS LTD. IN I.T.A NO.394/LKW/2011 BY ITAT LUCKNOW BENCH. ( IV ) SH RAVASTI KISAN SAHKARI CHINI MILLS LTD. VS. DCIT IN I.T.A. NO.204/LKW/2011 BY ITAT LUCKNOW BENCH. ( V ) CIT VS. ALOM EXTRUSIONS LTD. [2009] 319 ITR 306 (SC) ( VI ) ESSAE TERAOKA PVT. LTD. VS. DCIT [2014] 43 TAXMANN.COM 33 (KARN) ( VII ) CIT VS. UDAIPUR DUGDH UPADAK SAHAKARI SAN GH LTD. [2014] 265 CTR (RAJ) 59. ( VIII ) CIT VS. AUTO INDUSTRIES LTD. [2013] 358 ITR 43 (P&H) ( IX ) CIT VS. HEMLA EMBROIDERY MILLS (P) LTD. [2014] 265 CTR (P&H) 57. ( X ) CIT VS. LAKHANI RUBBER WORKS [2010] 326 ITR 415. 3 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED HEAVY RELIA NCE UPON THE ORDER S OF THE LOWER AUTHORITIES WITH THE SUBMISSION THAT THE ASSESSEE HAS NOT MADE PAYMENT BEFORE DUE DATE, THEREFORE, DEDUCTION OF THE SAME CANNOT BE ALLOWED. THE LD. D.R. HAS FURTHER CONTENDED THAT CONTRIBUTION OF THE EMPLOYEES DO NOT FALL WITHIN THE PROVISIONS OF SECTION 43B OF THE ACT AS UNDER SECTION 43B(B) OF THE ACT ANY SUM PAYABLE BY THE ASSESSEE AS AN PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF EMPL OYEES SHALL BE ALLOWED, IF PAID BEFORE FILING OF THE RETURN OF INCOME. THERE IS NO CLAUSE UNDER SECTION 43B OF THE ACT WHICH DEALS WITH THE PAYMENT OF CONTRIBUTION OF EMPLOYEE TOWARDS PF , ESI OR SUPERANNUATION FUND, ETC. AS PER SECTION 36(1)(VA) OF THE A CT , ONLY THAT PAYMENT OF CONTRIBUTION OF THE EMPLOYEE S WOULD BE ALLOWED, IF IT IS PAID BEFORE THE DUE DATE AND ADMITTEDLY THE PAYMENT OF CONTRIBUTION OF THE EMPLOYEES W AS NOT MADE BEFORE THE DUE DATE. THEREFORE, THE REVENUE HAS RIGHTLY DISALLOWED DEDUCTIO N OF THE SAID PAYMENT. 4 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT UNDISPUTEDLY THE PAYMENT OF CONTRIBUTION OF THE EMPLOYEES TOWARDS PF AND ESI WERE NOT MA DE BEFORE THE DUE DATE, BUT FROM THE DETAILS IT IS ALSO EVIDENT THAT THE PAYMENTS WERE MADE WITHIN THE GRACE PERIOD PRESCRIBED UNDER THE RELEVANT ACT, AS THE DEL AY WAS ADMITTEDLY 2 TO 5 DAYS ONLY. WHEN THE RELEVANT ACT ITSELF PROVIDES PAYMENT WITHIN THE G RACE PERIOD, WE FIND NO JUSTIFICATION IN DISALLOWING DEDUCTION OF THE PAYMENT OF CONTRIBUTION OF THE EMPLOYEES TOWARDS PF AND ESI. WE HAVE ALSO CAREFULLY PERUSED THE AFORESAID JUDGMENT REFERRED TO BY THE ASSESSEE AND WE FIND THAT IN THOSE JUDGMENTS, IT HA S BEEN REPEATED LY HELD THAT IF THE PAYMENT OF CONTRIBUTION TOWARDS PF, ESI, ETC. OF THE EMPLOYER WERE MADE BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME, THE SAME SHOULD BE ALLOWED UNDER SECTION 43B OF THE ACT. ADMITTEDLY IN THOSE CASES , THE ASPEC T OF APPLICABILITY OF PROVISIONS OF SECTION 43B OF THE ACT TO THE PAYMENTS OF THE EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI WAS NOT EXAMINED. BUT IN ANY CASE , THE PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PF & ESI WE RE MADE WITHIN THE GRACE PERIOD UNDER T HE RELE V ANT ACT, THEREFORE, THERE IS NO JUSTIFICATION IN DISALLOWING THE DEDUCTION OF THE SAME. ACCORDINGLY, WE SET ASIDE THE ORDER PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION OF THE PAYMENTS TO EMPLOYEES CONTRIBUTION TOWARDS PF & ESI. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD JUNE , 2014 JJ: 1306 COPY FORWARDED TO: 1 . APPELLA NT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )