Peri Software Solutions Private Limited, CHENNAI V. ACIT, CHENNAI

ITA 754/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9282 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH J
• Assessee Lawyers: Y SRIDHARC A
• Keywords: Question of law
• Section: 43B; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , ! ' . #$ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.754/MDS./2016 / ASSESSMENT YEAR :2011-12 M/S.PERI SOFTWARE SOLUTIONS PVT LTD., M/S.RAMESH & RAMACHANDRAN, CHARTERED ACCOUNTANT, NEW NO.39, OLD NO.29/3, VISWANATHAPURAM MAIN ROAD, KODAMBAKKAM, CHENNAI 600 024. VS. ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE V(2), CHENNAI. [PAN AABCP 7391 P ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : MR.Y.SRIDHAR,CA /RESPONDENT BY : MR.A.V.SREEKANTH,JCIT,DR / DATE OF HEARING : 30 - 05 - 201 6 / DATE OF PRONOUNCEMENT : 03 - 06 - 2016 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX, CHENNAI-5 DATED 08.02.2 016 PASSED U/S.263 OF THE ACT PERTAINING TO ASSESSMENT YEAR 20 11-12. ITA NO.754/MDS./16 :- 2 -: 2. THE FIRST GRIEVANCE IN THIS APPEAL IS WITH REGA RD TO INVOKING THE JURISDICTION U/S.263 OF THE ACT SO AS TO DISALLOW T HE EMPLOYEES CONTRIBUTION TOWARDS THE PF & ESI OF ` 30,16,641/- TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUNDS ON OR BEFORE THE DUE DATES, SPECIFIED UNDER RESPECTIVE ACT. 3. ACCORDING TO THE CIT, THE AO WAS NOT VERIFIED T HE ABOVE ISSUE WHILE PASSING THE ASSESSMENT ORDER U/S.143(3) OF TH E ACT DATED 19.03.2014. HE FURTHER, OBSERVED THAT AS PER THE P ROVISIONS OF THE SECTION 36(1)(VA) R.W.S.2(24)(X), THE SUM OF ` 30,16,641/- DESERVES TO BE DISALLOWED AND TREATED AS INCOME OF ASSESSEE. HE OBSERVED THAT SINCE THE AO HAD NOT MADE ANY ADDITION ON THIS COUN T BY DISALLOWING THE SUM OF ` 30,16,641/-, THE ORDER OF AO IS ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF REVENUE. THEREFORE, LD. CIT ISS UED A NOTICE DATED 17.12.2015 REQUIRING THE ASSESSEE COMPANY TO SHOW-C AUSE AS TO WHY THE ASSESSMENT ORDER U/S.143(3) DATED 19.03.2014 S HOULD NOT BE REVISED U/S.263 OF THE ACT TO BRING TO TAX THE AFOR ESAID LEFT OUT INCOME. ACCORDINGLY, LD. CIT DIRECTED THE AO TO DISALLOW TH E DELAYED REMITTANCE OF PF & ESI TO THE TUNE OF ` 30,16,641/- TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUNDS WHILE PASSING THE CONSEQUENT ORD ER OF 263. ACCORDINGLY, LD. CIT CANCELLED THE ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT DATED 19.03.2014. ITA NO.754/MDS./16 :- 3 -: 4. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE O PINION THAT THE GRIEVANCE OF THE ASSESSEE PERTAINING TO EMPLOYEES CONTRIBUTION TOWARDS PF & ESI AFTER DUE DATE AS PRESCRIBED UNDER THE ACT IS SQUARELY COVERED BY THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. MIS. INDUSTRIAL SECURITY & INTELLIGENCE INDI A PVT. LTD. IN TC(APPEAL) NOS.585 & 586 OF 2015 DATED 24.7.2015 AN D HELD AS UNDER:- 5. WE FIND THAT THE TRIBUNAL HAS RIGHTLY RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUS IONS LTD. REPORTED IN 319 ITR 386, WHEREBY, THE SUPREME COURT HELD THAT OMISSION OF SECOND PROVISO TO SECTION 43B AND AMEND MENT TO FIRST PROVISO BY FINANCE ACT, 2003 ARE CURATIVE AND ARE EFFECTIVE RETROSPECTIVELY, I.E., WITH EFFECT FROM 1.4.1988 I. E., THE DATE OF INSERTION OF FIRST PROVISO. THE DELHI HIGH COURT IN THE CASE OF CIT V. AMIL LTD. REPORTED IN 321 ITR 508 HELD THAT IF THE ASSESSEE HAD DEPOSITED EMPLOYEES CONTRIBUTION TOWA RDS PROVIDENT FUND AND ESI AFTER DUE AS PRESCRIBED UNDE R THE RELEVANT ACT, BUT BEFORE THE DUE DATE OF FILING OF RETURN UNDER THE INCOME TAX ACT, NO DISALLOWANCE COULD BE MADE IN VI EW OF THE PROVISIONS OF SECTION 43B AS AMENDED BY FINANCE ACT , 2003. 6. IN THE PRESENT CASE, THE ASSESSEE HAD REMITTED T HE EMPLOYEES CONTRIBUTION BEYOND THE DUE DATE FOR PAYM ENT, BUT WITHIN THE DUE DATE FOR FILING THE RETURN OF INCOME . HENCE, FOLLOWING THE ABOVE-SAID DECISIONS, WE FIND NO REAS ON TO DIFFER WITH THE FINDINGS OF THE TRIBUNAL. ACCORDINGLY, WE FIND NO QUESTION OF LAW MUCH LESS ANY SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION IN THESE APPEALS. ACCORDIN GLY, BOTH ITA NO.754/MDS./16 :- 4 -: THE TAX CASE (APPEALS) STAND DISMISSED. NO COSTS. CONSEQUENTLY, M.P.NO. 1 OF 2015 IS ALSO DISMISSED. IN VIEW OF THE ABOVE JUDGEMENT OF JURISDICTIONAL HI GH COURT, THE CIT IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT VIDE ORDER DATED 08.02.2016. AS ON THIS DATE, THE JUDGME NT OF JURISDICTIONAL HIGH COURT DATED 24.07.2015 WAS VERY MUCH AVAILABLE AND THE SAME IS APPLICABLE TO THE FACTS OF THE PRESENT CASE. ACCORD INGLY, THE ORDER OF CIT U/S.263 OF THE ACT IS QUASHED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE OF 3 RD JUNE,2016 AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 3 RD JUNE, 2016 K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 4. - 1 / CIT 2. / RESPONDENT 5. /23- 4 / DR 3. - 1-!' / CIT(A) 6. 3&-5 / GF