Eastern Bearings Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 6496/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3582 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 20-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NOS. 6497 & 6496/DEL/2016 ASSESSMENT YEARS: 2013-14 & 2012-13 EASTERN BEARINGS PRIVATE LIMITED, VS. DCIT, CIRCLE 8(1), 11/26, EAST PUNJABI BAGH, NEW DELHI NEW DELHI (PAN: AABCE1150B) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : MS. ASHIMA NEB, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THESE APPEALS AGAINST THE I MPUGNED ORDERS DATED 18.10.2016 & 03.10.2016 OF LD. CIT(A)- 3, NEW DELHI PERTAINING TO ASSESSMENT YEARS 2013-14 & 2012-13 RE SPECTIVELY. SINCE THE COMMON ISSUES ARE INVOLVED IN THESE APPEA LS, HENCE, THE SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALI NG WITH ITA NO. 6497/DEL/2016 9(AY 2013-14). THE GROUND RAISED IN A SSESSMENT YEAR 2013-14 READS AS UNDER:- 1.) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-53 NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OFRS.2,08,155.00 ON ACCOUNT OF LATE DEPOSIT OF EMPLOYEE' CONTRIBUTION T O PF 2 CLAIMED BY THE AGGRIEVED APPELLANT IGNORING THE SUBMISSIONS MADE DURING THE ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS BEFORE THE CIT RESPECTIVELY. 2.) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHILE UPHOLDING THE ADDITION, HAS IGNORED THE LANDMARK JUDGEMENT OF DELHI HIGH COURT IN THE CASE OF CIT VS. P.M. ELECTRONICS LIMITED WHEREIN IT WAS HEL D' THAT THE SUBJECT ISSUE IS NO LONGER RES INTEGRA IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT V VINAY CEMENT LTD: 213 ITR 268 WHICH HAS BEEN FOLLOWED BY A DIVISION BENCH OF THIS COURT IN THE CASE OF CIT V. DHARMENDRA SHARMA' AND THEREFORE PF 'PAYMENTS AND ESI CONTRIBUTIONS WHICH WERE MADE AFTER THE DUE DAT E PRESCRIBED UNDER THE RELEVANT ACT AND RULES BUT BEF ORE THE FURNISHING OF RETURN OF INCOME UNDER SECTION 13 9(1) ARE ADMISSIBLE UNDER SECTION 36(1)(VA) READ WITH SE CTION 2(24)(X) AND SECTION 43(B) TO THE ASSESSE IN RESPEC T OF BOTH EMPLOYER AND EMPLOYEE CONTRIBUTION. 3.) THAT IT IS THEREFORE, PRAYED THAT, IT BE HELD THAT ASSESSMENT MADE BY THE LEARNED ASST. COMMISSIONER O F INCOME TAX AND SUSTAINED BY THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) BE QUASHED AND, FURTHER ADDITION SO UPHELD BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ALONG WITH INTEREST LEVIED BE DELETED AND APPEAL OF THE APPELLANT BE ALLOWED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER DISALLOWED A SUM OF RS.2,08,155/- BEING CONTRIBUTIO N TOWARDS PROVIDENT FUND U/S. 43B OF THE ACT ON THE GROUND T HAT THE SAME WAS PAID BEYOND THE DUE DATE AS PROVIDED UNDER THE RELEVANT ACT AND RULES. 3. UPON ASSESSEES APPEAL AS REGARDS THE PAYMENT OF PF, LD. COMMISSIONER OF INCOME TAX (A) HAS UPHELD THE ACTI ON OF THE AO 3 BY HOLDING THAT SINCE THE ASSESSEE HAS ADMITTEDLY N OT PAID THE DEDUCTION SO MADE WITHIN THE DUE DATE AS PROVIDED U NDER SECTION 36(1)(VA), THE ASSESSEE WAS NOT ENTITLED TO GET DED UCTION OF THE AMOUNTS DEDUCTED THERE UNDER FOR AND ON BEHALF OF T HE EMPLOYEES. 4. AGAINST THE ABOVE ORDER THE ASSESSSE IS IN APPEA L BEFORE US. 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSES SEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT . KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AN D THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT A PPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD LD. DR AND PERUSED THE RELEVANT RE CORDS, ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE GROUND S OF APPEAL FILED BY THE ASSESSEE. WE FIND CONSIDERABLE COGENCY IN TH E GROUNDS OF APPEAL OF THE ASSESSEE THAT SUBJECT ISSUE IS NO LON GER RES INTEGRA IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. VINAY CEMENT LTD.: 213 ITR 268. WE FIND THAT IN THE PRESENT CASE THE PF CONTRIBUTION AMOUNT WAS PAID AFTER THE DUE DATE AS PROVIDED IN THE EPF ACT, BUT THE SAME WAS P AID BEFORE THE DUE DATE OF FILING OF RETURN FOR THE ASSESSMENT YEA R UNDER CONSIDERATION. IN THESE CIRCUMSTANCES, ASSESSEES C LAIM IS ALLOWABLE, AS PER THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF C.I.T. VS. VINAY CEMENT LTD. 213 CTR 268. WE FURTHER FIND THAT SINCE THE ASSESSEE HAS DEPOSITED THE EMPLOYEES CON TRIBUTION OF PF IN LESS THAN A MONTH, HENCE, WE ALSO DRAW SUPPORT F ROM THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. AIMIL LIMITED REPORTED IN (2010) 321 ITR 508 (DEL) WHEREI N THE HONBLE HIGH COURT HAS HELD AS UNDER:- 4 WE MAY ONLY ADD THAT IF THE EMPLOYEES CONTRIBUTIO N IS NOT DEPOSITED BY THE DUE DATE PRESCRIBED UNDER THE RELEVANT ACTS AND IS DEPOSITED LATE, THE EMPLOYER NOT ONLY PAYS INTEREST ON DELAYED PAYMENT BUT CAN INCUR PENALTIES ALSO, FOR WHICH SPECIFIC PROVISIONS ARE M ADE IN THE PROVIDENT FUND ACT AS WELL AS THE ESI ACT. THEREFORE, THE ACT PERMITS THE EMPLOYER TO MAKE THE DEPOSIT WITH SOME DELAYS, SUBJECT TO THE AFORESAID CONSEQUENCES. IN SO FAR AS THE INCOME TAX ACT IS CONCERNED, THE ASSESSEE CAN GET THE BENEFIT IF THE ACTUAL PAYMENT IS MADE BEFORE THE RETURN IS FILED, AS PER THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN VINAY CEMENT (2009) 313 ITR (ST.) 1. WE, THUS, ANSWER THE QUESTION IN FAVOUR OF THE ASSE SSEE AND AGAINST THE REVENUE. AS A CONSEQUENCE, THE APPE ALS FILED BY THE ASSESSES STAND ALLOWED AND THOSE FILED BY THE REVENUE ARE DISMISSED. 8. AFTER PERUSING THE AFORESAID DECISIONS OF THE H ONBLE SUPREME COURT OF INDIA AS WELL AS THE HONBLE DELHI HIGH C OURT, WE ARE OF THE VIEW THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE AFORESAID DECISIONS, BECAUSE IN THE PRESENT CASE ALSO THE ASS ESSEE HAS DEPOSITED THE EMPLOYEES CONTRIBUTION TO PF BEFORE THE DUE DATE OF FILING OF RETURN GIVEN U/S. 139(1) OF THE I.T. ACT. THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID PRECEDENTS, TH E ADDITION IN DISPUTE IS DELETED AND ACCORDINGLY, THE GROUNDS RAI SED BY THE 5 ASSESSEE STANDS ALLOWED. AS A RESULT, THE ITA NO. 6 497/DEL/2016 (AY 2013-14) IS ALLOWED. 9. FOLLOWING THE CONSISTENT VIEW AS TAKEN BY US IN RESPECT OF AY 2013-14, AS AFORESAID, THE SIMILAR GROUND RAISED IN ASSESSMENT YEAR 2012-13 IS ALSO ALLOWED. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED ON 01/02/2018. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 01/02/2018 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR 6