Bliss Tree Infracon Pvt. Ltd., Delhi V. ACIT, Circle- 5(1), New Delhi

ITA 7546/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6925 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 15-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CITA ON IN RELATION TO A Y
• Assessee Lawyers: IS DIRECTED AGAINS T PASSED
• Keywords: Additional evidence
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE MR. R.S. SYAL, VICE PRESIDENT ITA NO. 7546/DEL/2017 ASSESSMENT YEAR: 2014-15 M/S BLISS TREE INFRACON PVT. LTD., M-136, CHURCH LANE, LAXMI NAGAR, DELHI VS. ACIT, CIRCLE-5(1), NEW DELHI PAN : AADCP7569B (APPELLANT) (RESPONDENT) - O R D E R PER R.S.SYAL, V.P.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 28.9.2017 IN RELATION TO THE A.Y. 2014-15 . 2. THE ASSESSEE IS AGGRIEVED AGAINST THE NON ADMISS ION OF ADDITIONAL EVIDENCE BY THE LEARNED CIT(A) IN SUPPORT OF PAYMEN T OF COMMISSION TO PARTIES, FOR WHICH THE ADDITION WAS MADE. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE CLAIMED PAYMENT OF COMMISSION AMOUNTING TO RS. 10,65,638/-. THE AO DISALLOWED THE SAME. THE ASSESSEE REQUESTED THE LEARNED CIT(A) TO ADMIT ADDITIONAL APPELLANT BY SH. SURESH K. GUTPA, CA RESPONDENT BY SH. ATIQ AHMED, SR. DR DATE OF HEARING 25.7.2018 DATE OF PRONOUNCEMENT 26.7.2018 2 ITA NO.7546 /DEL/2017 EVIDENCE IN SUPPORT OF THE PAYMENT OF SUCH COMMISSI ON WHICH THE LEARNED CIT(A) REFUSED TO DO. WITHOUT GOING INTO THE MERITS OF ADDITION, I CONSIDER IT EXPEDIENT TO SET ASIDE THE IMPUGNED ORDER ON THIS S CORE AND REMIT THE MATTER TO THE FILE OF THE LEARNED CIT(A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCE WHICH THE ASSESSEE PROPOSES TO FILE BEFORE HIM IN SUPPORT OF GENUINENESS OF COMMISSION OF PAYMENT AND THEREAFTER DECIDE THE ISSUE AS PER LAW. 4. THE OTHER GROUND IN THIS APPEAL IS AGAINST THE C ONFIRMATION OF DISALLOWANCE OF RS. 53,451/- FOR DELAYED DEPOSIT OF ESI / EPF EMPLOYEES SHARE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THE ASSESSEE DEPOSITED THE AMOUNT OF EMPLOYEES CONTRIB UTION TOWARDS EPF AND ESI BELATEDLY. THE DETAILS OF DUE DATE AND ACTUAL PAYMENT HAVE BEEN SET OUT ON PAGE 5 OF THE ASSESSMENT ORDER. HE, THEREFORE, M ADE DISALLOWANCE OF RS.53,451/-, WHICH CAME TO BE AFFIRMED IN THE FIRST APPEAL. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. IT IS FOUND THAT THE ISSUE RAISED HERE IS NO MORE RES INTEGRA . THE HONBLE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LIMITED (2009) 319 ITR 306 (SC) HAS HELD THAT THE AMENDMENT TO FIRST PROVISO AND OMISSION OF THE SECOND PROVISO TO SECTION 43B BY TH E FINANCE ACT, 2003 IS 3 ITA NO.7546 /DEL/2017 RETROSPECTIVE. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. AIMIL LIMITED (2010) 321 ITR 508 (DELHI) HAS ALLOWED DEDUCTION IN RESPECT OF EMPLOYEES SHARE WHEN THE AMOUNT WAS PAID BEFORE TH E DUE DATE. WHEN I CONSIDER THESE TWO JUDGMENTS, IT BECOMES PATENT TH AT BOTH THE EMPLOYERS AND EMPLOYEES CONTRIBUTION ARE ALLOWABLE AS DEDUCT ION IF THE AMOUNT OF PROVIDENT FUND ETC., THOUGH BELATEDLY, BUT IS PAID BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT. 6. ADVERTING TO THE FACTS OF THE INSTANT CASE, IT I S SEEN AS AN ADMITTED POSITION THAT THE ASSESSEE DEPOSITED THE EMPLOYEES CONTRIBUTION TOWARDS EPF AND ESIC BEFORE THE DUE DATE U/S 139(1) OF THE ACT. RESPECTFULLY FOLLOWING THE AFORENOTED JUDGMENT OF THE HONBLE JU RISDICTIONAL HIGH COURT, I ORDER FOR THE DELETION OF THE ADDITION SUSTAINED IN THE FIRST APPEAL ON ACCOUNT OF LATE DEPOSIT OF EMPLOYEES CONTRIBUTION TO THE P ROVIDENT FUND. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 26.07.2018. ) SD/- (R.S. SYAL) VICE PRESIDENT N. MISHRA) DT. 26 .07.2018 SH 4 ITA NO.7546 /DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI DATE 1. DRAFT DICTATED ON PS 2. DRAFT PLACED BEFORE AUTHOR 26.7.2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 7.2 018 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 7.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 11. DATE OF UPLOADING 7.2018 *