ALMIGHTY RESOURCES PVT. LTD., ALWAR V. INCOME TAX OFFICER, BHIWADI

ITA 679/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3354 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 18-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Assessee Lawyers: MAHENDRA BALANI
• Section: 43B; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 679/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 M/S ALMIGHTY RESOURCES PVT. LTD., A-75, BHAGAT SINGH COLONY, BHIWADI, ALWAR (RAJ)-301009. CUKE VS. INCOME TAX OFFICER, BHIWADI. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAKCA 6390 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA BALANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/08/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 23/08/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28/02/2018 OF LD. CIT(A), ALWAR FOR THE A.Y. 2014-1 5. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW CIT (A) HAS ERRED IN MAINTAINING THE ADDITION TO THE EXTENT OF RS. 293231.00 ON ACCOUNT OF DELAY DEPOSIT OF EMPLOYEES CONTRIBUTION OF ESI AND EPF. 2. THE DELAY AMOUNT OF RS. 123378/- IN CASE OF DELA Y OF ESI PAYMENT AND RS. 169854/- IN CASE OF DELAY IN EPF PAYMENT TO WARDS CONTRIBUTION OF EMPLOYEES HAS BEEN DISALLOWED; THE AMOUNT SO DISALLOWED HAS BEEN DEPOSITED BEFORE THE DUE DATE O F RETURN. 3. THE DELAYED PAYMENT IN RESPECT OF EMPLOYEES' CON TRIBUTION TO PF & ESI NEEDS TO BE GIVEN LIBERAL APPROACH IN VIEW OF T HE RATIO LAID DOWN ITA 679/JP/2018_ M/S ALMIGHTY RESOURCES P. LTD. VS ITO 2 BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. P.M. ELECTRONICS LTD.. 220 CTR 635 (DELHI) WHILE RELYING UPON THE DE CISION OF HON'BLE APEX COURT IN THE CASE OF CIT VS. VINAY CEMENT LTD. ,213 CTR (SC) 268, CONCURRED WITH THE VIEW TAKEN BY THE HON'BLE MADRAS HIGH COURT IN NEXUS COMPUTER (P) LTD., 219 CTR (MAD) 54 THAT EMPL OYER/ EMPLOYEES' CONTRIBUTION TOWARDS PROVIDENT FUND PAYM ENTS MADE AFTER THE DUE DATE PRESCRIBED UNDER THE EMPLOYEES' PROVIDENT FUND ACT AND RULES MADE THERE UNDER BUT BEFORE THE DUE D ATE FOR FURNISHING THE RETURN OF INCOME UNDER SUB SEC. 1 OF SEC. 139 OF THE ACT, ARE ALLOWABLE UNDER S. 36(I)(VA) READ WITH SEC . 2(24(X) AND SEC. 43B OF THE ACT. MOREOVER, HON'BLE APEX COURT IN THE CASE OF CIT VS ATOM EXTRUSIONS LTD. 319 ITR 306 (SC) HELD THAT THE OMISSION OF THE FIRST PROVISO TO SECTION 43B OF THE ACT BY THE FINA NCE ACT 2003, OPERATED, RETROSPECTIVELY, WITH EFFECT FROM, APRIL 1, 1988 AND NOT PROSPECTIVELY FROM APRIL 1, 2004. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY , OR WITHDRAW ANY OF THE GROUND OF APPEAL AT THE TIME OF HEARING. 2. WE HAVE HEARD THE LD. A.R. OF THE ASSESSEE AS WEL L AS THE LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT AS PER AUDIT REPORT, THE ASSESSEE HAS PAID P.F. CONTRIBUTION AND ESI TO THE EMPLOYEES AFTER DUE DATE OF PRESCRIBED LIMIT UNDER THE RESPEC TIVE ACT. THE ASSESSING OFFICER HAS GIVEN THE DETAILS OF THE PAYMENTS MADE BY THE ASSESSEE IN RESPECT OF THE PF AND ESI CONTRIBUTION AT PAGE 2 AN D 3 OF THE ASSESSMENT ORDER AS UNDER: ESI S. NO. MONTH EMPLOYEES CONTRIBUTION DUE DATE ACTUAL DATE OF PAYMENT 1. APRIL, 2013 5054 21/05/2013 21/06/2013 2. APRIL, 2013 3759 21/05/2 013 17/06/2013 ITA 679/JP/2018_ M/S ALMIGHTY RESOURCES P. LTD. VS ITO 3 3. MAY, 2013 5343 21/06/2013 18/07/2013 4. MAY, 2013 5310 21/06/2013 18/07/2013 5. MAY, 2013 6745 21/06/2013 21/08/2013 6. JUNE, 2013 4126 21/07/2013 12/08/2013 7. JUNE, 2013 7002 21/07/2013 17/09/2013 8. JULY, 2013 4126 21/08/2013 16/ 09/2013 9. JULY, 2013 6702 21/08/2013 23/10/2013 10. JULY, 2013 4142 21/08/2013 17/10/2013 11. AUGUST, 2013 6074 21/09/2013 19/11/2013 12. AUGUST, 2013 4186 21/09/2013 19/11/2013 13. SEPTEMBER, 2013 5991 21/10/2013 20/12/2013 14. SEPTEMBER, 2013 4074 21/10/2013 20/12/2013 15. OCTOBER, 2013 5891 21/11/2013 28/01/2014 16. NOVEMBER, 2013 4125 21/12/2013 21/01/2014 17. NOVEMBER, 2013 5964 21/12/2013 20/02/2014 18. DECEMBER, 2013 4170 21/01/2014 20/02/2014 19. DECEMBER, 2013 5924 21/01/2014 18/03/2014 20. DECEMBER, 2013 3872 21/01/2014 18/03/2014 21. JANUARY, 2014 6130 21/02/2014 18/04/2014 22. JANUARY, 2014 3651 21/02/2014 18/04/2014 23. FEBRUARY, 2014 7156 21/03/2014 20/05/2014 24. FEBRUARY, 2014 3861 21/03/2014 20/05/2014 TOTAL 123378/ - PROVIDENT FUND S. NO. MONTH EMPLOYEES CONTRIBUTION DUE DATE ACTUAL DATE OF PAYMENT 1. APRIL, 2013 42803/ - 20/05/2013 21/05/2013 2. JULY, 2013 46030/ - 20/08/2013 21/08/2013 3. NOVEMBER, 2013 40815/ - 20/12/2013 26/12/2013 4. DECEMBER, 2013 40206/ - 21/01/2 014 29/01/2014 TOTAL 169854/ - THUS, IT IS CLEAR THAT THE PAYMENTS WERE MADE BY THE ASSESSEE BEFORE DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1) OF T HE INCOME TAX ACT, 1961 (IN SHORT THE ACT), HOWEVER, DUE TO THE REASON THAT THE PAYMENTS WERE MADE NOT MADE WITHIN THE PERIOD STIPULATED AS PER EP F SCHEME AND ESI ACT. THEREFORE, THE ASSESSING OFFICER DISALLOWED THE SAID AMOUNT OF RS. 1,69,854/- AND RS. 1,23,378/- RESPECTIVELY. THE ASSE SSING OFFICER FURTHER ITA 679/JP/2018_ M/S ALMIGHTY RESOURCES P. LTD. VS ITO 4 NOTED THAT, THOUGH, THE ISSUE HAS BEEN DECIDED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. JVVNL, 99 DTR 131. HOWEVER, SINCE THE REVENUE HAS NOT ACCEPTED THAT DECISION AND FILED AN SLP BEFORE THE HON'BLE SUPREM E COURT, THEREFORE, THE ASSESSING OFFICER MADE DISALLOWANCE IN THIS RESPECT. 3. THERE IS NO DISPUTE THAT IF THE REVENUE HAS NOT A CCEPTED THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT AND CHALLENGED THE SAME BEFORE THE HON'BLE SUPREME COURT THEN TO KEEP THE ISSUE ALIVE , THE ASSESSING OFFICER HAS TO MAKE THE DISALLOWANCE/ADDITION ON THE ISSUE. HOWEVER, THE APPELLATE AUTHORITY IS BOUND BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. IN THE CASE IN HAND, THE LD. CIT(A) HAS NOT DISPUTED THE FACT THAT ALL THE PAYMENTS WERE MADE BEFORE DUE DATE OF F ILING OF THE RETURN OF INCOME U/S 139(1) OF THE ACT AND DISMISSED THE APPE AL OF THE ASSESSEE IN PARA 3.3 AS UNDER: 3.3 IN ABSENCE OF ANY EVIDENCES IN SUPPORT OF THE CLAIM, I HAVE RELIED UPON THE FACTS MENTIONED IN THE ASSESSMENT ORDER. NO PRO OF OF DEPOSITS OF ESI BEFORE THE DUE DATE OF FILING OF RETURN WAS FILED DU RING APPELLATE PROCEEDINGS. AFTER CONSIDERING THE SAME, I SEE NO R EASON TO INTERFERE WITH THE ASSESSMENT ORDER PASSED BY THE A.O. ACCORD INGLY THE APPELLANTS GROUNDS OF APPEAL ARE DISMISSED. IT IS APPARENT THAT THE LD. CIT(A) HAS GIVEN THE REA SON FOR UPHOLDING THE DISALLOWANCES THAT NO PROOF OF DEPOSIT WAS PRODUCED B Y THE ASSESSEE ITA 679/JP/2018_ M/S ALMIGHTY RESOURCES P. LTD. VS ITO 5 WHEREAS THE ASSESSING OFFICER ITSELF HAS NOT DISPUTE D THE FACTUAL POSITION OF MAKING THE PAYMENTS BY THE ASSESSEE AS REPRODUCED I N THE ASSESSMENT ORDER AND QUOTED IN THE FOREGOING PARAGRAPH OF THIS ORDER. HENCE, EVEN IF THERE WAS NO APPEARANCE BY THE ASSESSEE BEFORE THE L D. CIT(A) AND THE APPEAL WAS DECIDED ON MERITS THEN THE LD. CIT(A) WAS N OT EXPECTED TO IGNORE THE ADMITTED FACTS AS RECORDED IN THE ASSESS MENT ORDER. ACCORDINGLY, IN VIEW OF THE VARIOUS DECISIONS OF HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. STATE BANK OF BIKANER & JAIPUR, 363 ITR 70 (RAJ) AS WELL AS CIT VS. JVVNL (SUPRA), WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW QUA THIS ISSUE AND ALLOW THE CLAIM OF THE ASSESSEE. AT THE COST OF REPETITION, WE MAY AGAIN POINT OUT THAT THE APPELLATE AUTHORITY OUGHT NOT TO BE INFLUENCED BY THE STAKES INVOLVED I N THE CASE BUT HAS TO MAINTAIN THE JUDICIAL DISCIPLINE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/08/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23 RD AUGUST, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S ALMIGHTY RESOURCES PVT. LTD., BHI WADI, ALWAR. ITA 679/JP/2018_ M/S ALMIGHTY RESOURCES P. LTD. VS ITO 6 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, BHIWADI. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 679/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR