THE FREYSSINET PRESTRESSED CONCRETE CO. LTD,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-6(2), MUMBAI

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ITA 1327/MUM/2022Status: DisposedITAT Mumbai24 January 2023AY 2010-114 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal due to COVID-19. The matter was remanded to the AO for de novo adjudication on the issue of unexplained cash credits, as the assessee's submissions were not considered. The ground related to employee PF/ESIC contributions was dismissed.

What were the facts?

The assessee challenged additions made by the AO and confirmed by the CIT(A) regarding unexplained cash credits and employee contributions to PF/ESIC. The assessee claimed they had submitted written submissions which were not considered by the CIT(A).

What were the issues?

Whether the CIT(A) erred by not considering the assessee's written submissions, and whether employee contributions to PF/ESIC deposited after the due date but before the return filing are allowable.

Which sections of the Income-tax Act were involved?

Section 68,Section 2(24)(x),Section 36(1)(va)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “F” BENCH, MUMBAI

Before: SHRI PRASHANT MAHARISHI, AM & MS. KAVITHA RAJAGOPAL, JM

For Appellant: Shri Madhur Aggarwal
For Respondent: Shri Vranda U. Matkarni
Hearing: 09.01.2023Pronounced: 24.01.2023

O R D E R Per Kavitha Rajagopal, J M:

This appeal has been filed by the assessee, challenging the order of the learned Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal Centre (‘NFAC’ for short) u/s.250 of the Income Tax Act, 1961 (‘the Act'), pertaining to the Assessment Year (‘A.Y.’ for short) 2010-11.

2.

The appeal filed by the assessee is time barred by 128 days which is covered by the decision of the Hon'ble Supreme Court in In Re: Cognizance for Extension of Limitation (in Suo Motu Writ Petition (C) No. 3 of 2020) where the Hon'ble Apex Court had extended the limitation time owning to the Covid-19 pandemic, we hereby condone the delay in filing the said appeal.

(A.Y. 2010-11) The Freyssinet Prestressed Concrete Co. Ltd. vs. Dy. CIT 3. The assessee has challenged the addition made by the Assessing Officer (A.O. for short) u/s. 68 of the Act and confirmed by the ld. CIT(A). The assessee has also challenged the addition on account of employee contribution to Provident Fund (PF for short) and Employee’s State Insurance Corporation (ESIC for short) u/s. 2(24)(x) of the Act read with Explanation to 36(1)(va) of the Act.

4.

The brief facts are that the assessee company is engaged in the manufacturing of anchorages, cones, flexible sheathings and construction, repairs and rehabilitation of civil structures & prestressing, etc. The assessee filed its return of income dated 30.09.2010, declaring total income at Rs.3,92,99,157/-. The assessee filed its revised return of income dated 30.03.2012, declaring total income at Rs.4,05,90,086/-. The assessee’s case was selected for scrutiny and the assessment order dated 18.03.2013 was passed u/s. 143(3) and the A.O. determined the total income at Rs.6,27,27,962/- by making various additions/disallowances.

5.

Aggrieved by the said order, the assessee was in appeal before the ld. CIT(A), who confirmed the said addition made by the A.O.

6.

Further aggrieved, the assessee is in appeal before us.

7.

The learned Authorized Representative (ld. AR for short) for the assessee contended that the ld. CIT(A) has failed to considered the assessee’s submission and brought our attention to notice dated 07.10.2022 from NFAC , Delhi to the assessee fixing up the date of furnishing written submissions on or before 20.10.2021. The ld. AR further stated that the written submission along with the documentary evidence was (A.Y. 2010-11) The Freyssinet Prestressed Concrete Co. Ltd. vs. Dy. CIT submitted on 19.10.2021 along with Annexure 1 to 9 in response to the said notice. The ld. AR further contended that the ld. CIT(A) has stated that the assessee has failed to reply to the notice and that the said appeal was decided based on the material available on record. The ld. AR prayed for one more opportunity to present the assessee’s case before the A.O., as there was no fault on the assessee’s side in complaining with the notice.

8.

The learned Departmental Representative (ld. DR for short) had nothing to controvert the same.

9.

Having heard the rival submissions and perused the material available on record.

We are of the considered view that the assessee has filed its written submission before NFAC, Delhi before the due date specified in notice dated 07.10.2021, which was not considered by the same. We are inclined to remand the matter back to the file of the A.O. adhering to the principles of natural justice. The A.O. is directed to decide the appeal on merits based on the written submissions and the documentary evidences proposed to be filed by the assessee.

10.

Ground no. 1 being general in nature and ground no. 3 relates to the disallowance made u/s. 36(1)(va) r.w.s. 2(24)(x) of the Act where the assessee is said to have deposited the employees contribution to PF and ESIC fund after the due date under the relevant Act but before filing of the returns. It is observed that the said ground is decided against the assessee in view of the decision of the Hon'ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT (in Civil Appeal No.2833 of 2016 dated 12.10.2022). Hence, this ground of appeal filed by the assessee is dismissed.

(A.Y. 2010-11) The Freyssinet Prestressed Concrete Co. Ltd. vs. Dy. CIT 11. Ground no. 2 pertains to the addition made u/s. 68 of the Act. The same is remanded back to the file of the A.O. for de novo adjudication.

12.

In the result, the appeal filed by the assessee is partly allowed for statistical purpose.

Order pronounced in the open court on 24.01.2023 Sd/- Sd/- (Prashant Maharishi) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 24.01.2023 Roshani, Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER,

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