Swastik Carecon Limited, Mehsana V. ITO, Ward-4(1)(2), Ahmedabad

ITA 63/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8746 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 17-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Assessee Lawyers: PARIMAL SINGH PARMAR
• Keywords: Principle of natural justice; Reasonable cause; Set aside
• Section: 43B; 43; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) [THROUGH VIRTUAL COURT] ITA. NO: 63 & 75/AHD/2019 (ASSESSMENT YEARS: 2013-14 & 2014-15) SWASTIK CERACAN LIMITED, 1071-74, AT-NANDASAN, NANDASAN-MEHSANA ROAD, NH-8, TA- KADI, DIST- MEHSANA-382706 PAN NO. AAFCM 4519E I.T.O, WARD-4(1)(2), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIMAL SINGH PARMAR, A.R. RESPONDENT BY : SHRI S. S. SHUKLA, SR. D.R. ( )/ ORDER DATE OF HEARING : 20-07-2021 DATE OF PRONOUNCEMENT : 29-07-2021 PER MAHAVIR PRASAD, J.M. 1. THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED CIT(A)) ORDER NO. CIT(A)- ITA NOS. 63 & 75/AHD/2019 . A.YS. 2013-14 & 2014-15 2 4/10033/2017-18 ORDER DATED 15/11/2018 ARISING OUT OF ASSESSMENT ORDER DATED 28/03/2016. 2. IN ITA NO. 63/AHD/2019 FOR A.Y. 2013-14, ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE AO OF DISALLOWING EMPLOYEE'S CONTRIBUTION TOWARDS PF AMOUNTING TO RS.27,53,533/- U/S.36(L)(VA) R.W.S.2(24)(X) OF THE ACT. 2. ALTERNATIVELY AND WITHOUT PREJUDICE, THE MATTER SHOULD BE REMANDED TO THE AO TO VERIFY WHETHER PAYMENTS HAVE BEEN MADE WITHIN THE GRACE PERIOD. 3. ALTERNATIVELY AND WITHOUT PREJUDICE, THE MATTER SHOULD BE REMANDED TO THE AO TO VERIFY WHETHER THE SUM WAS DEPOSITED WITHIN 21 DAYS FROM THE END OF THE MONTH OF PAYMENT OF SALARY AS CONTEMPLATED UNDER THE PROVISIONS OF EMPLOYEES PROVIDENT FUNDS & MISCELLANEOUS PROVISIONS ACT, 1952 AND EMPLOYEES STATE INSURANCE ACT, 1948. 4. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDERS WITHOUT PROPERLY APPRECIATING THE FACTS AND THEY FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN LEVYING INTEREST U/S.234A/B/C OF THE ACT. 6. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN INITIATING PENALTY U/S.271(L)(C) OF THE ACT. ITA NOS. 63 & 75/AHD/2019 . A.YS. 2013-14 & 2014-15 3 3. BRIEF FACTS OF THE CASE ARE THAT THE LOWER AUTHORITIES MADE AND CONFIRMED DISALLOWANCE OF RS. 27,53,533/- EMPLOYEES CONTRIBUTION OF PROVIDENT FUND MADE BY THE PAYMENT U/S. 36(1)(VA) OF THE ACT AND ON PERUSAL OF THE RETURN, IT IS OBSERVED THAT PAYMENT OF EMPLOYEES CONTRIBUTION TO PF FOR THE FOLLOWING MONTH HAS BEEN PAID DELAYED: MONTH UNIT 1 UNIT 2 UNIT 3 UNIT 4 MAY 12 .. 62,536/ - JUNE 12 .. JULY 12 1,16,694/ - 25,866/ - 1,06,487/ - 70,510/ - AUG 12 1,21,479/ - 1,06,517/ - 75,270/ - SEPT 12 1,26,257/ - 24,941 1,06,971/ - 78,073/ - OCT 12 . .. . 75,006/ - NO V 12 1,28,196/ - 22,157/ - 99,818/ - 71,673/ - DEC 12 1,34,697/ - 23,721/ - 1,03, 621/ - 74,702/ - JAN 13 1,36,067/ - 23,924/ - 1,00,342/ - 73,722/ - FEB 13 1,38,377/ - 24,321/ - 97,219/ - 68,656/ - MAR 13 1,45,668/ - 24,472/ - 98,527/ - 67,046/ - TOTAL 10,47,435/ - 1,69,402/ - 8,19,502/ - 7,17,194/ - 27,53,533/ - 4. AS PER PROVIDENT FUND ACT, ASSESSEE IS REQUIRED TO MAKE PAYMENT ON OR BEFORE 15 TH DAY OF THE MONTH BUT IN CERTAIN CASES, ASSESSEE HAS MADE PAYMENT WITHIN GRACE PERIOD. 5. SINCE CERTAIN PAYMENTS HAVE BEEN MADE WITHIN GRACE PERIOD OF FIVE DAYS AND THE HONBLE GUJARAT HIGH COURT HAS HELD IN THE MATTER OF CIT VS. AMOLI ORGANICS PVT. LTD. WHEREIN IT IS HELD THAT THE ASSESSEE SHALL BE ENTITLED TO THE BENEFITS OF THE AMENDMENT UNDER SECTION 43B AMENDED BY THE FINANCIAL ACT, 2003. EVEN WITH RESPECT TO THE AMOUNT OF PROVIDENT FUND DEPOSITED WITH THE APPROPRIATE AUTHORITY PRIOR TO DATE OF FILING OF THE RETURN, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF C1T V. ALOM EXTRUSIONS LTD. [2009] 31 9 ITR 306/1 85 TAXMAN ITA NOS. 63 & 75/AHD/2019 . A.YS. 2013-14 & 2014-15 4 416. HOWEVER, AS THE ASSESSEE HAS NOT PREFERRED ANY APPEAL, WE ARE NOT CONCERNED WITH THE AMOUNT WHICH THE ASSESSEE DEPOSITED WITH THE PROVIDENT FUND AUTHORITY PRIOR TO FILING OF THE RETURN AND WE ARE CONCERNED WITH WHETHER THE LEARNED TRIBUNAL IS JUSTIFIED IN HOLDING THAT AS THE ASSESSEE HAS DEPOSITED THE AMOUNT OF PROVIDENT FUND WITHIN THE EXTENDED GRACE PERIOD, THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION UNDER SECTION 43 OR NOT? 6. SINCE THE HONBLE GUJARAT HIGH COURT HAS CATEGORICALLY STATED THAT BENEFIT OF GRACE PERIOD SHALL BE GIVEN TO THE ASSESSEE. 7. IN VIEW OF THE ABOVE, WE ARE SATISFIED THE MATTER WITH THE PLEA OF ASSESSEE AND IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE PAYMENT DETAILS AND IF CERTAIN PAYMENTS HAVE BEEN MADE WITHIN GRACE PERIOD AS PER AMENDMENT U/S. 43B AMENDED BY THE FINANCIAL ACT, 2003 THEN SAME BENEFIT OF RELIEF GIVEN TO THE ASSESSEE AS PER LAW. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. SO FAR ITA NO. 75/AHD/2019 FOR A.Y. 2014-15 IS CONCERNED, APPEAL IS TIME BARRED BY 254 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT AND GIVEN REASON FOR DELAYED FILING OF APPEAL. WE ARE SATISFIED WITH THE PLEA OF THE ASSESSEE AND THERE IS A REASONABLE CAUSE TO CONDONE THE DELAY. THUS, WE CONDONE THE DELAY AND PROCEED WITH THE APPEAL. 10. IN THIS APPEAL, ASSESSEE HAS FILED A CHART SUBMITTING THAT CERTAIN PAYMENTS HAVE BEEN MADE WITHIN GRACE PERIOD. AS WE HELD IN CONNECTED ITA NO. 63/AHD/2019 THAT MATTER TO BE REEXAMINED BY THE A.O. 11. THUS, IN PARITY WITH THE AFORESAID APPEAL, WE SET ASIDE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE ALL PAYMENTS MADE BY THE ASSESSEE TOWARDS EMPLOYEES ITA NOS. 63 & 75/AHD/2019 . A.YS. 2013-14 & 2014-15 5 CONTRIBUTION TO THE PF. IF ANY PAYMENT HAVE BEEN MADE BY THE ASSESSEE WITHIN GRACE PERIOD BECAUSE OF THE ABOVE SAID APPEAL, SAME BENEFIT WILL BE GIVEN TO THE ASSESSEE. 12. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 29 - 07- 2021 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 29/07/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD