Deputy Commissioner of Income-tax, V. Tirupati Ind. Services P. Ltd., Pune

ITA 95/PUN/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2828 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 19-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Assessee Lawyers: SHANTANU J PENDSE
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , . . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO.95 /PN/2015 / ASSESSMENT YEAR : 20 11 - 12 THE I NCOME TAX OFFICER (JUDICIAL)(HQ), AKURDI, PUNE . / APPELLANT VS. TIRUPATI IND. SERVICES PVT. LTD., S.NO.188, PLOT NO.4, RAMHARI COMPLEX, GAWADE COLONY, CHINCHWAD, PUNE 411 033 . / RESPONDENT PAN NO.AACCT2030N / APPELLANT BY : SHRI HITENDRA NINAWE / RESPONDENT BY : SHRI SHANTANU J. PENDSE / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A) - V , PUNE, DATED 08 . 1 0.2014 RELATING TO ASSESSMENT YEAR 20 11 - 12 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - / DATE OF HEARING : 2 7.01 .201 6 / DATE OF PRONOUNCEMENT: 1 0 . 02 .201 6 2 ITA NO.95/PN/2015 TIRUPATI IND. SERVICES P. LTD. 1 . 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DIRECTING TO ALLOW THE CLAIM IN RESPECT OF DELAYED PAYMENT OF EMPLOYEE'S CONTRIBUTION TO PROVIDENT FUND AND ESIC GOVERNED BY 36(1)(VA) BY TREATING IT ALLOWABLE U/S.43B OF THE I.T. ACT?' 2 . 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN NOT APPRECIATING THE DIFFERENCE BETWEEN 'EMPLOYEE'S CONTRIBUTION' AND 'EMPLOYER'S CONTRIBUTION' OF PROVIDENT FUND WHILE SUCH DISTINCTION HAS BEEN DRAWN BY HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CI T VS. GODAVARI (MANNAR) SAHAKARI SAKHAR KARKHANA LTD. 212 CTR 384 AND WHETHER LD. CIT(A) WAS JUSTIFIED IN FOLLOWING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSION LTD. 319 ITR 306(SC), WHICH IS APPLICABLE ONLY TO EMPLOYER'S CONTRIBUTIO N?' 3 . 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN NOT APPRECIATING THAT THE ASSESSEE CLAIMED DEDUCTION U/S.36(1 )(VA) OF THE ACT, WITHOUT FULFILLING THE REQUISITE CONDITION RELYING UPON DECISION IN THE CASE OF GHATGE PATIL TRANSPORTERS IN ITA NO .340/PN/2010 DTD.29/07/2011 WHICH ARE REJECT MATTER OF HIGHER APPEALS AND WHERE THE QUESTION IS OPEN AND HAS NOT BECOME FINAL? 4 . THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST ALLOWANCE OF CLAIM IN RESPECT OF DELAYED PAYMENT OF EMPLOYEES CONTRIB UTION TO PROVIDENT FUND AND ES IC. ES IC. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN CIT VS. HINDUSTAN ORGANICS CHEMICALS LTD. IN INCOME TAX APPEAL NO.399 OF 2012, DATED 11.07.2 014. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD DELAYED IN MAKING PAYMENT TOWARDS EMPLOYEES CONTRIBUTION TO PF AND ESIC AS DETAILED AT PAGE S 5 TO 8 OF 3 ITA NO.95/PN/2015 TIRUPATI IND. SERVICES P. LTD. THE ASSESSMENT ORDER. THE PERUSAL OF THE SAID DETAILS REFLECTS THAT THE SAID PAYMENTS WERE MADE BY THE ASSESSEE BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE ADDITION MADE ON ACCOUNT OF SUCH AMOUNTS BEING NOT PAID WITHIN THE DUE DATES PROVIDED UNDER THE RESPECTIVE ACTS OF THE PF AND ESIC. 7. WE FIND THAT THE ISSUE OF EMPLOYEES CONTRIBUTION TO PF AND ESIC BEING PAID BELATEDLY BUT BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME, AROSE BEFORE THE HONBLE BOMBAY HIGH COURT IN CIT VS. GHATGE PATIL TRANSPORTS LTD. IN IT APPEAL NOS.1002 & 1034 OF 2012, VIDE ORDER DATED 14.10.2014 WHEREIN, IT HAS BEEN HELD THAT NO ADDITION IS TO BE MADE IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE ACT ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PF AND ESIC, WHERE THE SAME IS DEPOSITED BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. IN THIS REG ARD, RELIANCE WAS PLACED BY THE HONBLE BOMBAY HIGH COURT ON THE RATIO LAID DOWN BY HONBLE SUPREME COURT IN CIT VS. ALOM EXTRUSIONS LTD. REPORTED IN DOWN BY HONBLE SUPREME COURT IN CIT VS. ALOM EXTRUSIONS LTD. REPORTED IN (2009) 319 ITR 306 (SC) AND ON THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. LAKHANI RUBB ER WORKS REPORTED IN (2010) 326 ITR 415 (P&H). 8. THE ISSUE ARISING IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE HONBLE BOMBAY HIGH COURT IN CIT VS. GHATGE PATIL TRANSPORTS LTD. (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PF AND ESIC, WHERE THE SAID AMOUNTS HAVE THOUGH BEEN PAID BELATEDLY, BUT BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. THE ASSESSING OFFICER IS THUS, DI RECTED TO DELETE THE ADDITION MADE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PF AND ESIC AS IT IS EVIDENT FROM THE PERUSAL OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS 4 ITA NO.95/PN/2015 TIRUPATI IND. SERVICES P. LTD. DEPOSITED THE SAID AMOUNTS BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. ACCORDING LY, THE GROUND S OF APPEAL RAISED BY THE REVENUE ARE THUS, DISMISSED . 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRO NOUNCED ON THIS 10 TH DAY OF FEBRUARY, 2016. SD/ - SD/ - ( R.K. PANDA ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 10 TH FEBRUARY , 201 6 . GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . CIT (A) - V , PUNE ; 3 . CIT (A) - V , PUNE ; 4 . 5. 6. CIT - V, PUNE ; , , , / DR, ITAT, B PUNE; / GUARD FILE . / BY ORDER , //TRUE COPY// / SR. PRIVATE SECRETARY , IQ.KS / ITAT, PUNE