ACIT, Circle - 33, Kolkata, Kolkata V. Hasibul Hossain, Kolkata

ITA 709/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6701 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 16-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 ITA NO.709/KOL/2018 HASIBUL HOSSAIN , AY- 2014-15 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 709/KOL/2018 ASSESSMENT YEAR: 2014-15 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-33, KOLKATA VS. HASIBUL HOSSAIN (PAN: ABJPH3476P) APPLICANT RESPONDENT DATE OF HEARING 08.01.2019 DATE OF PRONOUNCEMENT 23.01.2019 FOR THE APPLICANT SHRI SANKAR HALDER, JCIT, SR. DR FOR THE RESPONDENT SHRI H. V. BHARDWAJ, FCA ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF LD. CIT(A)-09, KOLKATA DATED 16.10.2018 FOR AY 2014-15. 2. THE MAIN GRIEVANCE OF THE REVENUE IS AGAINST THE ACTION OF LD. CIT(A) IN HOLDING THAT EMPLOYEES CONTRIBUTION DEPOSITED BY EMPLOYER BEYOND DUE DATE IS AN ALLOWABLE DEDUCTION. 3. BRIEFLY STATED FACTS ARE THAT IN THIS CASE THE A O DISALLOWED A SUM OF RS.57,33,819/- AND RS.10,27,512/- FOR DELAYED PAYMENT OF EMPLOYEES PF AND ESIC RESPECTIVELY SINCE THE ASSESSEE HAS MADE PAYMENT OF THE EMPLOYEES PROVIDEN T FUND AND ESI CONTRIBUTIONS BEYOND THE STATUTORY DATE AS PROVIDED IN THE RESPECTIVE PR OVIDENT FUND ACT AND ESIC ACT, BUT WITHIN THE DUE DATE OF FILING OF INCOME TAX RETURN U/S. 13 9(1) OF THE ACT. ON APPEAL, THE LD. CIT(A) FOLLOWING THE DECISION OF HONBLE CALCUTTA H IGH COURT IN THE CASE OF CIT VS. M/S. VIJAY SHREE LTD. IN ITAT NO. 245 OF 2011 HELD THAT THE ADDITIONS OF RS.67,61,331/- MADE ON ACCOUNT OF PAYMENT OF EMPLOYEES PF & ESI CONTRIBUTI ONS AFTER DUE DATE AS PRESCRIBED IN THE RELEVANT LEGISLATION BUT BEFORE FILING RETURN OF IN COME SATISFIES THE REQUIREMENT OF LAW AND SO NO DISALLOWANCE WAS WARRANTED AND ORDERED TO DELETE THE ADDITION/DISALLOWANCE. AGGRIEVED, REVENUE IS BEFORE US. 2 ITA NO.709/KOL/2018 HASIBUL HOSSAIN , AY- 2014-15 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT AT THE OUTSET ITSELF, IT HAS BE EN BROUGHT TO OUR NOTICE THAT THE MAIN ISSUE IS REGARDING THE ACTION OF THE LD. CIT(A) IN DELETING THE DISALLOWANCE MADE BY THE AO IN RESPECT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTI ON WHICH WAS DEPOSITED BY THE EMPLOYER BEYOND THE DUE DATE AS ALLOWABLE DEDUCTION AS PER THE RESPECTIVE ACTS. WE NOTE THAT THE LD. CIT(A) HAS TAKEN NOTE THAT A SUM OF RS .57,33,819/- AND RS.10,27,512/- TOTALING TO RS. 67,61,331/- FOR DELAYED REMITTANCE OF EPF AN D ESIC RESPECTIVELY WAS DISALLOWED BY AO SINCE THE ASSESSEE HAS MADE REMITTANCE OF THE EP F AND ESIC CONTRIBUTION BEYOND THE STATUTORY DATE AS PROVIDED IN THE RESPECTIVE PF ACT AND ESIC ACT. HOWEVER, WE NOTE THAT THE LD. CIT(A) TAKING NOTE THAT THE ASSESSEE HAD RE MITTED THE AMOUNT BEFORE THE DATE OF FILING OF INCOME TAX RETURN U/S. 139(1) OF THE ACT HAVE GIVEN RELIEF TO THE ASSESSEE. EVEN THOUGH WE ASKED THE LD. DR, AS TO ANY INFIRMITY IN THE FINDING RECORDED BY THE LD. CIT(A), HE COULD NOT POINT OUT AS TO WHETHER THERE IS ANY P AYMENTS WHICH WERE MADE AFTER THE FILING OF THE RETURN OF INCOME AS PER SEC. 139(1) OF THE A CT. SO, WE NOTE THAT THE ASSESSEE HAS REMITTED THE EPF AND ESIC CONTRIBUTION BEFORE THE D ATE OF FILING OF INCOME TAX RETURN AS PER SECTION 139(1) OF THE ACT FROM A PERUSAL OF THE ASS ESSMENT ORDER. IN SUCH A FACTUAL SCENARIO, RELYING ON THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT IN CIT VS. M/S. VIJAYSHREE LTD. CITED SUPRA, AND THE HONBLE SUPREME COURT DEC ISION IN THE CASE OF CIT VS. ALOM EXTRUSIONS, WE CONFIRM THE ORDER THE LD. CIT(A) AND DISMISS THIS GROUND OF APPEAL OF THE REVENUE. 5. THE LAST GROUND I.E. GROUND NO.4 IS GENERAL IN N ATURE AND DOES NOT REQUIRE ANY ADJUDICATION, HENCE THE SAME IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23RD JANUA RY, 2019. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 23RD JANUARY, 2019 JD.(SR.P.S.) 3 ITA NO.709/KOL/2018 HASIBUL HOSSAIN , AY- 2014-15 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT, CIRCLE-33, KOLKATA. 2 RESPONDENT MR. HASIBUL HOSSAIN, UDITA COMPLEX, 1050/1, SURVEY PARK, UD-04/0304, SANTOSHPUR, 24 PGS, KOLKATA-700 075. 3. 4. CIT(A)-09, KOLKATA. (SENT THROUGH E-MAIL) CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR