Suzlon Energy Ltd., Ahmedabad V. The DCIT, Circle-4(1)(1), Ahmedabad

ITA 765/AHD/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8012 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2014-2015
• Appeal Filed On: 27-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH SINGH
• Section: 143(3); 28

Judgement Text

ITA NOS. 764 & 765/AHD/2018 SUZLON ENERGY LTD VS. DCIT ASSESSMENT YEAR: 2013-14 & 2014-15 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, AM AND MS. MADHUMITA ROY, JM] ITA NOS. 764 & 765/AHD/2018 ASSESSMENT YEAR: 2013-14 & 2014-15 SUZLON ENERGY LTD ..................APPELL ANT SUZLON-5, SHRIMALI SOCIETY, NR. SHRI KRISHNA CENTRE, NAVRANGPURA, AHMEDABAD-380015 [PAN : AADCS 0472 N] VS. DY. COMMISSIONER OF INCOME-TAX ...........................RESPONDENT CIRCLE 4(1)(1), AHMEDABAD APPEARANCES BY: TUSHAR HEMANI FOR THE APPELLANT SAURABH SINGH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 22.06.2018 DATE OF PRONOUNCING THE ORDER : 27.06.2018 O R D E R PER PRAMOD KUMAR, AM: 1. BY WAY OF THESE APPEALS, THE ASSESSEE-APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 14.02.2018 AND 16.02.2018 PASSED BY THE BY THE CIT(A)-8, AHMEDABAD IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 144C OF THE INCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEARS 2013 -14 & 2014-15. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.7,96,29,760/- FOR AY 2013-14 AND RS.10,74,54,105/- FOR AY 2014-15, WHICH WERE ADDED BY THE ASSESSING OFFIC ER WITH THE AID OF SECTION 36(1)(VA) R.W.S. 2(24)(X) OF THE INCOME-TAX ACT, 19 61, FOR THE LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF/ESI. 3. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE A FORESAID ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY HONBLE JURISDICTIO NAL HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPOR ATION, 366 ITR 170 (GUJ.), WHEREIN IT IS CATEGORICALLY HELD THAT IN THE CASE O F DELAYED DEPOSIT OF EMPLOYEES CONTRIBUTION TO PF, THE SAME WILL NOT BE DEDUCTABLE IN COMPUTING INCOME UNDER SECTION 28 OF THE ACT. THE LAW SO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IS BINDING ON US. THE MERE FACT THAT AN APPEAL AGAINS T THE SAID DECISION IS PENDING BEFORE THE HONBLE SUPREME COURT DOES NOT DILUTE BI NDING NATURE OF THIS JUDICIAL PRECEDENT. AS REGARD DISMISSAL OF SLP IN THE CASE OF RAJASTHAN STATE BEVERAGES CORPORATION LTD (2017) 84 TAXMANN.COM 185 (SC), IT IS ONLY ELEMENTARY THAT WHEN A SLP IS DISMISSED BY A NON-SPEAKING ORDER, IT DOES N OT CONSTITUTE A LAW DECLARED BY HONBLE SUPREME COURT, AND AS SUCH, IT IS NOT BINDI NG UNDER ARTICLE 141 OF THE CONSTITUTION OF INDIA. THE AUTHORITY, FOR THIS PRO POSITION, IS CONTAINED IN A SERIES OF JUDGMENTS OF HONBLE SUPREME COURT, INCLUDING, INTE R ALIA, IN THE CASES OF STATE OF ITA NOS. 764 & 765/AHD/2018 SUZLON ENERGY LTD VS. DCIT ASSESSMENT YEAR: 2013-14 & 2014-15 PAGE 2 OF 2 MANIPUR VS. THINGUJAM BROJEN MEETAI, (1996) 9 SCC 2 9; OM PRAKASH GARGI V. STATE OF PUNJAB, (1996) 11 SCC 399 AND SUN EXPORT CORPN V . COLLECTOR OF CUSTOMS, AIR 1997 SC 2658. WE, THEREFORE, SEE NO LEGALLY SUSTA INABLE MERIT IN THE CASE OF THE ASSESSEE AND, RESPECTFULLY FOLLOWING THE JUDGMENT O F HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT C ORPORATION (SUPRA), DISMISS THE GRIEVANCE OF THE ASSESSEE IN PRINCIPLE. WE MAY, HO WEVER, ADD THAT A CO-ORDINATE BENCH OF THIS TRIBUNAL, IN THE CASE OF RAJJRATNA ME TAL INDUSTRIES LTD VS. ACIT (ITA NO.940/AHD/2015; ORDER DATED 22.09.2017), HAS OBSER VED AS FOLLOWS:- 3. ASSESSEE'S LATTER SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES' ACTION DISALLOWING/ADDING A SUM OF RS.3,85,810/- U/S. 36(1)(VA) R.W.S. 2(24) OF THE ACT ON ACCOUNT LATE P AYMENT OF EMPLOYEES' CONTRIBUTION TO PF & ESI IN QUESTION. THERE IS NO D ISPUTE THAT HON'BLE JURISDICTIONAL HIGH COURT'S DECISION IN CIT VS. GUJ ARAT STATE ROAD TRANSPORT CORPORATION (2014) 366 ITR 170 (GUJ) UPHOLDS SUCH A DISALLOWANCE IN PRINCIPLE. THE ASSESSEE'S CASE HOWEVER IS THAT RELE VANT DUE DATE HAS TO BE SEEN NOT FROM THE RELEVANT MONTH OF SALARY BUT THE ONE PERTAINING TO ITS PAYMENT. HE THEN FILES A COMPUTATION CHART INDICATI NG IT TO HAVE PAID ABOVE EMPLOYEES' PF/ESI CONTRIBUTIONS ON 22.05.2009 AND 2 8.05.2009 AS AGAINST THE DUE DATES THEREOF FOLLOWING ON 20.06.2009. THE REVENUE FAILS TO DISPUTE THIS FACTUAL POSITION. WE THEREFORE QUOTE THIS TRIB UNAL'S CO-ORDINATE BENCH DECISION IN KANOI PAPER & INDUSTRIES LTD. VS. ACIT 75 TTJ 448 THAT THE RELEVANT DATE IN SUCH CASE IS THAT OF MONTH OF THE ACTUAL PAYMENT OF WAGES/SALARIES. WE THEREFORE RELY ON THE ABOVE CO-O RDINATE BENCH DECISION AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPU GNED DISALLOWANCE AS WELL. 4. IN EFFECT THUS WHILE ANY DELAYED DEPOSIT OF PF/E SI IS TO BE DISALLOWED, IN TERMS OF HONBLE GUJARAT HIGH COURTS JUDGMENT IN THE CAS E OF GUJARAT STATE ROAD TRANSPORT CORPORATION (SUPRA), THE QUESTION AS TO W HETHER THERE IS A DELAY OR NOT MAY BE DECIDED BY THE ASSESSING OFFICER IN THE LIGHT OF ABOVE OBSERVATIONS BY THE CO- ORDINATE BENCH. THE ASSESSEE WILL GET RELIEF, IF F OUND ADMISSIBLE, ON THAT BASIS. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 27 TH JUNE, 2018 SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 27TH DAY OF JUNE, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD