M/S. VIRTEX ENGINEERS, MUMBAI V. CIT (A) NFAC, DELHI

ITA 90/MUM/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2782 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2018-2019
• Appeal Filed On: 17-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Question of law; Set aside
• Section: 154; 43B; 143(1); 250; 139(1); 43

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH MUMBAI Before Shri Sanjay Garg, Judicial Member & Shri Om Prakash Kant, Accountant Member I.T.A. Nos.89&90/Mum/2022 Assessment Year: 2017-18 & 2018-19 M/s Virtex Engineers......................................................................Appellant 3-A, Ashirwad Building, 1 st Floor, Govandi Road, Chembur, Mumbai. [PAN: AAAFV1343D] vs. CIT(A), NFAC, Delhi.....................................................................Respondent Appearances by: Shri Vimal Punamiya, AR, appeared on behalf of the appellant. Shri Achal Sharma, CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : May 09, 2022 Date of pronouncing the order : May 09, 2022 ORDER Per Bench: Both the present appeals have been preferred by the assessee against the separate orders both dated 23.11.2021 of the National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). Since the issues involved in both the appeals are identical in nature, hence these are disposed of with this common order. For the sake of convenience, we take up ITA No.89/Mum/2022 for the assessment year 2017-18 as a lead case. The assessee in this appeal has taken the following grounds of appeal: “1. The Learned CIT(Appeals), NFAC has erred in law and on facts and Circumstances of the case in upholding the disallowance of Rs.2,90,748/- made by CPC, Bangalore under section 36(1 )(va) in respect of Employees' Contribution to Recognised Provident Fund and Employees' State Insurance Contribution, by exercising powers u/s. 154 of the Act. 2. The Learned CIT(Appeals), NFAC's Order is silent in deciding as to whether the CPC, Bangalore can pass orders u/s. 154 and making additions of Rs.2,90,748/- when it had already accepted online response filed by the Appellant and accepting the Total Income as declared by the Appellant passing order u/s. 143(1) dated 05-12-2018. I.T.A. Nos.89&90/Mum/2022 Assessment Year: 2017-18 & 2018-19 M/s Virtex Engineers 2 3. The Learned CIT (Appeals), NFAC's Order is silent in deciding as to whether the CPC, Bangalore can make additions u/s. 154 without giving proper show cause notice to the Appellant and giving him reasonable opportunity of being heard, as required under the general provisions of law. 4. The Learned CIT(Appeals), NFAC has erred in law and on facts and circumstances of the case in coming to conclusion that the additions u/s. 36(1)(va) can be made both in respect of Employee's Contribution as well as Employer's Contribution to the Recognised Provident Fund (EPF) and Employee State Insurance Contribution (ESIC). 5. The Learned CIT(Appeals), NFAC has erred in law and on facts and circumstances of the case in not following the decisions of Jurisdiction High Court and quoting decisions of other High Courts which are not applicable to the Appellant. 6. The Learned CIT(Appeals), NFAC has erred in law and on facts and circumstances of the case in coming to conclusion that the explanation 2 to clause (va) to sub-section (1) of section 36, and explanation 5 to section 43B inserted by Finance Act, 2021 with effect from 01-04-2021, is retrospective and not prospective in operation. 7. The Appellant craves leave to add to alter or modify any of the above Grounds of Appeal.” 2. At the outset, the ld. Counsel for the assessee has submitted that there was a delay in depositing employee’s as well as employer’s contribution to the Employee’s Provident Fund/ESI fund. However, the amount was deposited before the due date of the filing of the return. The ld. Counsel has submitted that this issue is squarely covered by the decision of the Hon’ble Calcutta High Court in the case of CIT, Kolkata vs. M/s Vijay Shree Limited 43 taxman.com 396(Cal) which has been further followed by the Coordinate Calcutta Bench of this Tribunal in the case of Harendra Nath Biswas vs. DCIT in ITA No.186/Kol/2021 by the order dated 16.07.2021. The ld. DR could not show any decision contrary to the case law cited by the ld. Counsel for the assessee. 3. We find that the issue is covered in favour of the assessee as the assessment year involved is AY 2017-18 and the Explanation-5 inserted by Finance Act, 2021 to section 43B w.e.f. 01.04.2021 is not applicable to the assessment year under consideration. The relevant portion of the Coordinate Bench decision of the Tribunal in the case of Harendra Nath Biswas vs. DCIT (supra) for the sake of reference is reproduced as under: I.T.A. Nos.89&90/Mum/2022 Assessment Year: 2017-18 & 2018-19 M/s Virtex Engineers 3 “ 2. The sole grounds of appeal raised by the assessee is against the Ld. CIT(A) in confirming the action of AO who disallowed/added back a sum of Rs. 1,10,62,263/- on account of delayed deposit of employees contribution to PF and ESI u/s 36(1)(va) read with Section 2(24)(x) of the Income Tax Act, 1961 ( hereinafter referred to as the Act) despite the assessee contributing/depositing the same before the due date of filing of return of income u/s 139(1) of the Act. 3. Brief facts of the case is that the CPC while processing the return disallowed/added Rs. 1,10,62,263/- on the ground that employees contribution to employees provident fund (EPF) and ESI fund has been deposited beyond the due date applicable under the provision of ESI Act, 1948 and EPF Act by invoking the provision of Section 36(1)(va) of the Act. Aggrieved by this disallowance, the assessee filed the appeal before the national Faceless Appeal Centre (NFAC), Delhi where the Ld. CIT(A) has taken note of the assessee’s submission that no disallowance was warranted in respect of delayed deposit of employees contribution to EPF /ESI fund since the assessee has deposited the employees contribution in respect of both these Acts (EPF & ESI Act) before filing the return of income and relied on the various judicial decision including that of the jurisdictional Hon’ble High Court of Calcutta in the case of CIT vs. Vijayshree Ltd. in [2014] 43 taxman.com 396(Cal). However the Ld. CIT(A) did not accept the contentions of the assessee in this regard and by relying on the Explanation-5 below section 43B which was brought in by Finance Act, 2021 to deny the claim of assessee. Therefore, the assessee is before us by preferring this appeal. 4. We have heard both the parties and perused the record. First of all we do not countenance this action of the Ld. CIT(A) for the simple reason that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon’ble High Court will apply and since this Explanation-5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon’ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon’ble Calcutta High Court has taken note of the Hon’ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon’ble Calcutta High Court’s decision in Vijayshree Ltd. supra is reproduced as under: “This appeal is at the instance of the Revenue and is directed against an order dated 28 th April, 2011 passed by the Income Tax Appellate Tribunal, “A” Bench, Kolkata in ITA No. 1091/Kol/2010 relating to assessment year 2006-07 by which the Tribunal dismissed the appeal preferred by the Revenue against the order of CIT(A). The only issue involved in this appeal is as to whether the deletion of the addition by the AO on account of Employees ‘Contribution to ESI and PF by invoking the provision of Section 36(1)(va) read with Section 2(24)(x) of the Act was correct or not. It appears that the Tribunal below, in view of the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., reported in 2009 Vol.390 ITR 306, held that the deletion was justified. I.T.A. Nos.89&90/Mum/2022 Assessment Year: 2017-18 & 2018-19 M/s Virtex Engineers 4 Being dissatisfied, the Revenue has come up with the present appeal. After hearing Mr. Sinha, learned advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees’ Contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.” In the light of the aforesaid discussion we do not accept the Ld. CIT(A)’s stand denying the claim of assessee since assessee delayed the employees contribution of EPF & ESI fund and as per the binding decision of the Hon’ble High Court in Vijayshree Ltd. (supra) u/s 36(1)(va) of the Act since assessee had deposited the employees contribution before filing of Return of Income. Therefore, the assessee succeeds and we allow the appeal of the assessee.” 4. In view of the above proposition of law and the issue being squarely covered in favour of the assessee, the impugned order of the ld. CIT(A) is set aside. The appeal of the assessee is hereby allowed and the impugned addition made by the lower authorities is ordered to be deleted. 5. In the result, both the appeals of the assessee stand allowed. Mumbai, the 9 th May, 2022. Sd/- Sd/- [Om Prakash Kant] [Sanjay Garg] Accountant Member Judicial Member Dated: 09.05.2022. RS I.T.A. Nos.89&90/Mum/2022 Assessment Year: 2017-18 & 2018-19 M/s Virtex Engineers 5 Copy of the order forwarded to: 1. M/s Virtex Engineers, 3-A, Ashirwad Building, 1 st Floor, Govandi Road, Chembur, Mumbai. 2. CIT(A), NFAC, Delhi 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Mumbai Benches I.T.A. Nos.89&90/Mum/2022 Assessment Year: 2017-18 & 2018-19 M/s Virtex Engineers 6 Sl. No. Description Date 1 Prepared by BRN/dictation pad enclosed 2 Draft dictated on 3 Draft placed before author 4 Draft proposed & placed before the second Member 5 Draft discussed/approved by second Member 6 Approved draft comes to the Sr.PS/PS 7 Kept for pronouncement on 8 File sent to the Bench Clerk 9 Date on which file goes to the Head Clerk 10 Date of Dispatch of order