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Assessee by Shri Rakesh R Shah, C.A Revenue by Shri Deependra Kumar– Sr-DR Date of hearing 08.11.2021 Date of pronouncement 08.11.2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of ld. Commissioner of Income tax (Appeals)-2, Surat dated 11.06.2018 for assessment year (AY) 2015-16. The assessee has raised the following grounds of appeal:- “1.Contributiuon to PF/ESI by employer is not cover under section 36(1)(va) and hence disallowance should be made according to section 43B.”
2. At the outset of hearing, Ld. Authorized Representative (AR) for the assessee submits that issue raised by assessee is squarely covered against the assessee by the decision of Hon'ble jurisdictional High Court in the case of CIT vs. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj). The Special Leave Petition (SLP) filed by GSRTC has been admitted
Unnat Engineering Pvt. Ltd. by the Hon'ble Supreme Court for hearing on merit. The Ld. AR for the assessee prayed that the matter may be restored to the file of Ld. CIT(A), to decide the matter in accordance with result of Special Leave Petition (SLP) filed by the assessee before Hon'ble Supreme Court. The Ld. AR of the assessee further submits that on similar ground of appeal, the Tribunal has restored similar issue to the file of Ld. CIT(A) with the direction to decide the appeal as per the outcome of SLP before Hon'ble Supreme Court in in the case of Decor Home (India) Pvt. Ltd. Vs. ACIT, Circle-1(1)(2), Surat dated 24.07.2019.
3. On the other hand Ld. Sr. Departmental Representative (DR) for the Revenue supported the order of lower authorities. Ld. Sr. DR of the Revenue submits that as on the date the issue is squarely covered against the assessee, therefore the assessee is not entitled for any further relief for seeking restoration to the file of Ld. CIT(A) for awaiting of result of SLP before Hon'ble Supreme Court.
4. We have considered the rival submissions of both the parties and find that issue raised by assessee is in its appeal is squarely covered against the assessee which otherwise has been admitted by Hon'ble Supreme Court. We find that similar issue our predecessor in case of Decor Home (India) Pvt. Ltd./,
Unnat Engineering Pvt. Ltd. vs. ACIT, Circle-1(1)(2), Surat in dated 24.07.2019 restored the similar issue to the file of Ld. CIT(A) by passing the following order:- “6. We have heard the rival submissions and perused the relevant material on record. We find that the issue is squarely covered against the assessee by the decision of Hon'ble Gujarat High Court in the case of CIT v. Gujarat State Road Transport Corporation [2014] 366ITR 170 (Guj); 223 Taxman 398 : [2014] 41 taxmann.com 100 (2014) (1) TML 502-Guj-Hon'ble High Court, wherein it was held that section 43B does not apply to employees contribution. Only section 2(24)(x) read with section 36(1)(v) is applicable and therefore, employees contribution is disallowed if not paid within due dates prescribed under relevant Provident Fund / ESI Act. WE are, therefore, of the considered opinion that there is no mistake in the orders of lower authorities in making disallowance in the light of the ratio laid down by the Hon'ble Gujarat High Court in the above case (supra). However, since the SLP has been admitted by the Hon'ble Supreme Court against the decision of Hon'ble High Corut therefore we set aside this matter to the file of the ld. CIT(A) with the direction that the matter be decided as per outcome of SLP, as and when matter will be decided by the Hon'ble Apex Court. Accordingly, matter will be decided by the ld. CIT(A) as per provisions of law and direction of the Hon'ble Supreme Court of India. Therefore, this ground of appeal is set-aside for statistical purposes.”
5. Considering the order of co-ordinate Bench of this Tribunal, the issue is restored to the file of Ld. CIT(A) to pass order on the outcome of the SLP filed by GSRTC pending before Hon'ble Supreme Court.
Unnat Engineering Pvt. Ltd. 6. In the result, the appeal of the assessee is allowed for statistical purposed in above terms. Order pronounced in the open court on 08/11/2021 at the time of hearing in the virtual Court.