The ACIT,(OSD)Circle-8, Ahmedabad V. M/s. Sadbhav Engineering Ltd., Ahmedabad

ITA 776/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5739 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 29-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S CHAUDHRY
• Assessee Lawyers: M K PATEL
• Section: 43B; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING :15-7-10 DRAFTED ON: 15-7-10 ITA NO.776 /AHD/2008 ASSESSMENT YEAR :2005-06 ASSISTANT COMMISSIONER OF INCOME TAX(OSD) CIRCLE-8, 4 TH FLOOR, AAJANTA COMMERCIALCENTRE, ASHRAMROAD, AHMEDABAD. VS. SADBHAV ENGINEERING LTD., 706, SHILP BUILDING, C.G. ROAD, AHMEDABAD. PAN/GIR NO. : AADCS 0852 Q (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI D.S. CHAUDHRY, D.R. RESPONDENT BY: SHRI M.K. PATEL. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XIV, A HMEDABAD DATED 31-12-2007 2. THE SOLE GROUND OF APPEAL RAISED BY THE REVENUE IS AS UNDER :- THE LD. LEARNED COMMISSIONER OF INCOME TAX (APPEAL S)- XIV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIR ECTING THE ASSESSING OFFICER NOT TO DISALLOW AMOUNT OF RS.12,8 0,355/- WHICH WAS DISALLOWED BY THE LEARNED ASSESSING OFFIC ER BEING LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND. - 2 - 3. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNED ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION TO THE AS SESSEE FOR EMPLOYEES CONTRIBUTION TO PROVIDENT FUND OF RS.12,8 0,355/- ON THE GROUND THAT IT WAS NOT PAID WITHIN THE DUE DATE. 4. ON APPEAL BEFORE THE LEARNED COMMISSIONER OF INC OME TAX(APPEALS) THE ASSESSEE SUBMITTED THAT EMPLOYEES CONTRIBUTION TO PF HAS BEEN PAID WITHIN GRACE PERIOD AND ALSO THE A MOUNT IS PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. HENCE, IT IS ALLOWABLE DEDUCTION UNDER SECTION 43B OF THE ACT. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE THAT EMPLOYEES CONTRIBUTION TO PF DEPOSITED BEFORE THE DUE DATE OF FILING OF RETURN UNDER SECTION 139( 1) OF THE ACT WAS ALLOWABLE TO THE ASSESSEE BECAUSE IT IS NOT A CASE OF DISALLOWANCE UNDER SECTION 43B, BUT DISALLOWANCE UNDER SECTION 36(1)(VA) HOWEVER, HE AGREED WITH THE CONTENTION OF THE ASSES SEE THAT PAYMENTS MADE WITHIN THE GRACE PERIOD WAS ALLOWABLE DEDUCTIO N TO THE ASSESSEE AND ACCORDINGLY DIRECTED THE LEARNED ASSES SING OFFICER TO ALLOW DEDUCTION TO THE ASSESSEE IF THE AMOUNT WAS P AID WITHIN THE GRACE PERIOD. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED O N THE ORDER OF THE LEARNED ASSESSING OFFICER. 6. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE FILED COPY OF ORDER OF THE AHMEDABAD BENCH OF THE TRIBUN AL IN THE CASE OF M/S. JMC PROJECTS (INDIA) LTD. VS. DCIT CIR-4, AHME DABAD AND - 3 - SUBMITTED THAT THE TRIBUNAL IN THIS CASE VIDE ORDER DATED 28-03-2008 PASSED IN ITA NO.4175/AHD/07 HAS HELD THAT EMPLOYEE S CONTRIBUTION TO PF PAID BY THE ASSESSEE WITHIN THE DUE DATE OF F ILING OF THE RETURN UNDER SECTION 139(1) WAS ALLOWABLE DEDUCTION TO THE ASSESSEE. THEREFORE, THE GROUND OF APPEAL OF THE ASSESSEE SHO ULD BE ALLOWED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE LEARN ED ASSESSING OFFICER DISALLOWED DEDUCTION OF RS.12,80,355/- BEING CONTRI BUTION PAID TO EMPLOYEES CONTRIBUTION TO PF ON THE GROUND THAT IT WAS NOT PAID WITHIN THE DUE DATE PRESCRIBED UNDER THE ACT. THE ASSESSEE CONTENDED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) THAT SINCE THE CONTRIBUTION TO PF WAS PAID WITHIN THE GRACE PE RIOD ALLOWED UNDER THE PROVIDENT FUND ACT THE SAME WAS ALLOWABLE DEDUC TION TO THE ASSESSEE. IT WAS ALSO CONTENDED THAT SINCE THE EMPL OYEES CONTRIBUTION TO PF WAS PAID BEFORE THE DUE DATE OF FILING OF THE RETURN UNDER SECTION 139(1) OF THE ACT THE DEDUCTION WAS ALLOWAB LE TO THE ASSESSEE. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) RE JECTED THE FIRST CONTENTION OF THE ASSESSEE BUT ACCEPTED THE S ECOND CONTENTION OF THE ASSESSEE AND DIRECTED THE LEARNED ASSESSING OFF ICER TO ALLOW DEDUCTION FOR CONTRIBUTION TO PF OF RS.12,80,355/- IF THE SAME WAS PAID BY THE ASSESSEE WITHIN THE GRACE PERIOD PROVID ED UNDER THE PROVIDENT FUND ACT. BEING AGGRIEVED BY THIS ORDER, THE REVENUE IS IN APPEAL BEFORE US. WE FIND THAT THE ISSUE IS NOW DEC IDED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF COMMISSIONE R OF INCOME-TAX V. P. M. ELECTRONICS LTD., (2009) 313 ITR 161(DEL) WHEREIN IT WAS HELD AS UNDER : - 4 - THE ASSESSING OFFICER DISALLOWED THE CONTRIBUTIONS MADE BY THE ASSESSEE TOWARDS PROVIDENT FUND UNDER SECTION 43B OF THE INCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 1998-99, ON THE GROUND THAT THE PAYMENTS WERE MADE BY THE ASSESSEE AFTER THE DUE DA TE UNDER SECTION 36(1)(VA) OF THE ACT AND ACCORDINGLY MADE ADDITIONS . THE COMMISSIONER (APPEALS) CONFIRMED THE ADDITION OF RS . 13,10,791 AGAINST RS. 17,94,042 MADE BY THE ASSESSING OFFICER ON THE GROUND THAT CERTAIN PAYMENTS WERE MADE WITHIN THE PRESCRIB ED TIME. THE TRIBUNAL ALLOWED THE ASSESSEE'S APPEAL. ON APPEAL : _HELD,_ DISMISSING THE APPEAL, THAT THE VIEW TAKEN BY THE TRIBUNAL DESERVED TO BE SUSTAINED AS IT WAS NO LONGER RES IN TEGRA IN VIEW OF THE DECISION OF THE SUPREME COURT. THE ASSESSEE WAS ENT ITLED TO CLAIM THE BENEFIT UNDER SECTION 43B FOR THE PERIOD PARTICULAR LY IN VIEW OF THE FACT THAT IT HAD CONTRIBUTED TO PROVIDENT FUND BEFO RE FILING THE RETURN. CIT V. DHARMENDRA SHARMA [2008] 297 ITR 320 (DELHI) , CIT V. VINAY CEMENT LTD. [2009] 313 ITR (ST.) 1 AND CIT V . NEXUS COMPUTER P. LTD. [2009] 313 ITR 144 (MAD) APPLIED. CIT V. PAMWI TISSUES LTD. [2009] 313 ITR 137 (BOM) DISSENTED FROM. RESPECTFULLY FOLLOWING THE ABOVE QUOTED DECISION OF THE HON'BLE DELHI HIGH COURT WE CONFIRM THE ORDER OF THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS) AND DISMISS THE GROUND OF A PPEAL OF THE REVENUE. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 16TH DAY OF JULY, 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER - 5 - AHMEDABAD; ON THIS 16 TH DAY OF JULY, 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 15-7-10 2. DRAFT PLACED BEFORE AUTHORITY 15-7-10 3. DRAFT PROPOSED & PLACED JM BEFORE THE SECOND MEMBER 15-7-10 4. DRAFT DISCUSSED/APPROVED 15-7-10 JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 16-7-10 6. KEPT FOR PRONOUNCEMENT ON 16-7-10 7. FILE SENT TO THE BENCH CLERK 16-7-10 8. DATE ON WHICH FILE GOES TO THE 9. DATE OF DISPATCH OF ORDER