UNNAT ENGINEERING PRIVATE LIMITED,SURAT vs. INCOME TAX OFFICER, WARD 2(1)(4), SURAT

This appeal filed by the Assessee is directed against the order of Learned Commissioner of Income Tax (Appeals)-2, Surat-2 dated 03.08.2017 for the A.Y. 2013-14. The Assessee raised the following grounds of appeal: “1. Contribution to PF/ESI by employer is not cover under section 36(1)(va) and hence disallowance should be made according to section 43B”

On appeal before the ld.CIT(A) the action of AO was upheld. Further aggrieved, the assessee has filed present appeal before this Tribunal.

At the outset of hearing, the ld.Authorised Representative(AR) of the assessee submits that he has filed his written submissions which may be considered as part of his submission [submission dated 05.01.2021, we have noted that in the written submission, the assessee contended that there is delay of 3 days in filing appeal before the Tribunal. Delay was due to the non-availability of their accountant. The AR of the assessee prayed for condoning the delay. 5. The DR for the Revenue not seriously objected for the prayer of condonation of delay. 6. Considering the submission of the AR of the assessee, that the delay was neither intentional, but due to the reasons beyond the controls of assessee. We have further noted that there is delay of Unnat Engineering Pvt. Ltd., vs. ITO, Ward-2(1)(4), Surat/ A.Y. 2013-14

On merit, the AR of the assessee fairly submits that issue of disallowance under section 36(1)(va) raised by the assessee is covered against him by the decision of Hon'ble Gujarat High Court in case of CIT vs. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj). The AR further submitted Special Leave Petition(SLP) that especially petition filed by the Gujarat State Road Transport Corporation(GSRTC) against the decision of Hon'ble Gujarat High Court has been admitted by the Hon'ble Supreme Court. Therefore, the appeal of the assessee either may be kept in abeyance or may be restore to the Ld.CIT(A) with the direction that in case the matter is decided in favour of the GSRTC, the similar relief may be allowed to the assessee. The AR further submits that on similar ground of appeal, this Bench vide order dated 24.07.2019 in in Décor Home (India) Pvt. Ltd, vs. ACIT, set-aside the matter to the ld.CIT(A) with the direction to decide the appeal as per the outcome of SLP of GSRTC by the Hon'ble Apex Court. The AR prayed that this appeal may also be decided with similar direction to Lower Authorities.

On the other hand, the DR for the Revenue submits that as on today, the issue is covered against the assessee by the decision of 3

We have considered the rival contentions of both the parties and noted that on similar issue our predecessor in Décor Home (India) Pvt. Ltd. vs ACIT (supra), passed 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] 366 ITR 170 (Guj) : 223 Taxman 398 : [2014] 41 taxmann.com 100 (2014) (1) TML 502 -Guj-HC, wherein it was held that section 43B does not apply to employees contribution. Only section 2(24)(x) read with section 36(1)(va) 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 Court therefore, we set aside this matter to the file of the ld. CIT(A) with the direction that the matter be decide 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 purpose.”