Gupta Industrial Maintenance Serices P. Ltd., Nadiad V. The Asstt. Commissioner of Income Tax, Kheda Circle, Nadiad

ITA 692/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7868 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 28; 154; 15

Judgement Text

, LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD LOZJH LOZJH LOZJH LOZJH OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW;] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.692/AHD/2017 ( / ASSESSMENT YEAR : 2011-12) GUPTA INDUSTRIAL MAINTENANCE SERVICES PVT. LTD. TRILOK BUNGLOW, OPP: HIMALAYA FLATS, NANA KUMBHNATH ROAD, NADIAD / VS. ACIT, KHEDA CIRCLE, NADIAD. ./ ./ PAN/GIR NO. : AACCG 3247 Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : --NONE-- / RESPONDENT BY : SHRI PRASOON KABRA, SR.D.R. / DATE OF HEARING 05/07/2018 !'# / DATE OF PRONOUNCEMENT 13/07/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-2, VADODARA [CIT(A) IN SHORT] VIDE APPEAL NO.CAB/(A)- 2/136/15-16 DATED 26.12.2016 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS 'THE ACT') DATED 24.03.2014 RELEVANT TO ASSESSMENT YEAR (AY) 2011-12. ITA NO.692/AHD/2017 GUPTA INDUSTRIAL MAINTENANCE SERVICES PVT. LTD VS. ACIT ASST.YEAR 2011-12 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING AN ADDITION OF RS.8,44,856/- BEING AMOUNT OF PROVIDENT FUNDS CONTRIBUTION OF EMPLOYEES PAID BEFORE DUE DATE OF F URNISHING APPEAL. THE ADDITION MADE BY AO AND CONFIRMED BY CI T(A) AGAINST THE LEGAL POSITION SETTLED BY APEX COURT IS UNJUSTIFIED. IT BE SO HELD NOW. 2. THE LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.8,44,856/- BY RECOURSE TO SECTION 15 4 WHEN THERE WAS NO APPARENT MISTAKE WITHIN THE MEANING OF SECTI ON 154. IT BE SO HELD NOW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) OUGHT TO HAVE CANCELLED THE ORDER PASSED BY AO U/S 154 AN D DELETED THE ADDITION MADE. IT BE DELETED NOW. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, EDIT, DEL ETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 3. THE SOLITARY ISSUE RAISED BY ASSESSEE IS THAT LD . CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 8,44,856/- ON AC COUNT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PF UNDER SECTION 36(1)(VA) R.W.S. 2(24)(X) OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF INDUSTRIAL M AINTENANCE SERVICES AND CONTRACT WORKS. THE AO DURING THE ASSESSMENT PR OCEEDINGS OBSERVED THAT THE ASSESSEE HAS DEPOSITED EMPLOYEES CONTRIBUT ION TOWARDS PF AMOUNTING TO RS. 8,44,856/- AFTER THE DUE DATE AS S PECIFIED UNDER THE RELEVANT ACT. THEREFORE, THE AO DISALLOWED THE SAME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO.692/AHD/2017 GUPTA INDUSTRIAL MAINTENANCE SERVICES PVT. LTD VS. ACIT ASST.YEAR 2011-12 - 3 - 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LD. C IT(A) WHO HAS CONFIRMED THE ORDER OF AO. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSE E IS IN SECOND APPEAL BEFORE US. 6. THE LD. AR BEFORE US CONCEDED THE FACT THAT THE ISSUE FOR LATE DEPOSITS OF EMPLOYEES CONTRIBUTION TOWARDS PF AND ESIC HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. GSRTC REPORTED IN 265 CTR 64. ON THE CONTRARY, THE LD. DR VEHEMENTLY SUPPORTED TH E ORDER OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, IT WAS OBSERVED THAT THE ISSUE FOR DELAYED DEPOSITS OF EMPLOYEES CONTRIBUTION TOWARDS PF AND ESIC HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE HONBLE JU RISDICTIONAL HIGH COURT IN THE CASE OF GSRTC (SUPRA). THE RELEVANT EX TRACT OF THE ORDER IS REPRODUCED BELOW: IN VIEW OF THE ABOVE AND CONSIDERING SECTION 36(1) (VA), READ WITH SUB- CLAUSE (X) OF CLAUSE (24) OF SECTION 2, IT IS TO BE HELD THAT WITH RESPECT TO THE SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EM PLOYEES TO WHICH PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) OF SECT ION 2 APPLIES, THE ASSESSEE SHALL BE ENTITLED TO DEDUCTION IN COMPUTIN G THE INCOME REFERRED TO IN SECTION 28 WITH RESPECT TO SUCH SUM CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE 'DUE DATE' MENTIONED IN EXPLANATION TO SECTION 36(1)(VA) . CONSEQUENTLY, IT IS HELD THAT THE TRIBUNAL HAS ERRED IN DELETING RESPEC TIVE DISALLOWANCES BEING EMPLOYEES' CONTRIBUTION TO PF ACCOUNT/ESI ACC OUNT MADE BY THE ASSESSING OFFICER AS, AS SUCH, SUCH SUMS WERE NOT C REDITED BY THE ITA NO.692/AHD/2017 GUPTA INDUSTRIAL MAINTENANCE SERVICES PVT. LTD VS. ACIT ASST.YEAR 2011-12 - 4 - RESPECTIVE ASSESSEE TO THE EMPLOYEES 'ACCOUNTS IN T HE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE AS PER THE EXPLANAT ION TO SECTION 36(1)(VA) OF THE ACT I.E. DATE BY WHICH THE CONCERN ED ASSESSEE WAS REQUIRED AS AN EMPLOYER TO CREDIT EMPLOYEES' CONTRI BUTION TO THE EMPLOYEES ACCOUNT IN THE PROVIDENT FUND UNDER THE P ROVIDENT FUND ACT AND/OR IN THE ESI FUND UNDER THE ESI ACT. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT LAID DOWN BY THE JURISDICTIONAL HIGH COURT, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A). HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/07/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/07/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-2, VADODARA. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD