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Income Tax Appellate Tribunal, “DB” BENCH,
Before: BR BASKARAN & SHRI AMIT SHUKLA
आदेश / O R D E R PER AMIT SHUKLA :- The aforesaid appeal has been filed by the assessee against the order dated 10.01.2022, passed by the National Faceless appeal Center, Delhi (NFAC) for the A.Y. 2017-18, in pursuance of directions given by DRP dated 14.09.2021.
In the various grounds of appeal raised by the assessee which are as under:
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i) first issue relates to short allowance of depreciation to the tune of Rs.3,39,505/-; and ii) second issue relates to addition of Rs.30,180/- on account of delay in deposit in Government account, the employees' contribution to Employees State Insurance Scheme (ESI). 3. In so far as short allowance of depreciation is concerned, before us the Ld. Counsel for the assessee submitted that the DRP itself had directed that correct amount of depreciation admissible to theassessee works out to ₹ 3,70,25,683/-, whereas,as per the system generated intimation u/s 143(1) of the Act,the amount of depreciation which have been allowed has been worked out at ₹ 3,66,86,178/-,resulting into short allowance of ₹ 3,39,505/-. The DRP had already given direction for correction of mathematical error to the AO, which effect has not yet to be given. Accordingly, he pleaded that AO may be directed to decide issue according. 4. Since, already quantum of admissible depreciation has been accepted to be at ₹ 3,70,25,683/-,therefore, the AO is directed to correct figure of allowance, and grant depreciation on thisamount instead of taking system generated working of depreciation and delete the short disallowance of ₹ 3,39,505/-. 5. The next issue relates to deposits made in government account under Employees State Insurance Act 1948, on account of employees'
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contribution to ESI for the months of January and February 2017, respective particulars are extracted herein below:-
Details of Contributions received from employees for various funds as referred to ain Section 36(1)(va) Sr. Nature of Fund Sum Due date of The The Actual received payment Actual date of No. from Amount payment the employe Paid concerned es authorities
Any fund set up 30180 21.02.2017 30180 23.02.2017 under the provisions of ESI Act, 1948 11. Any Fund set up 30080 21.03.2017 30080 29.03.2017 under the Provisions of ESI Act, 1948 6. Before us the Ld. Counsel submitted that there was no delay on the part of the assessee to deposit the amount before the due date. It was purely on account of technical glitches in the system of the bank on these two occassions. He submitted that during the year the assessee had paid all the sums received from employees before the due date of payment except for two payments which assessee had paid and tendered to the bank but due to technical glitches deposits were made after couple of days. Month wise details of all the payments made during the year are as under:-
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Details of contributions received from employees for various funds as referred to in section 36(1)(va) Sr. No. Nature of Sum received Due date of The actual The actual fund from payment amount paid date of employees payment to the concerned authorities 1. Any Fund set 19242 21.05.2616 19242 20.05.2016 up under the provisions of ESI Act, 1948 2 Any Fund set 21652 21.06.2016 21652 20.06.2016 up under the provisions of ESI Act, 1948 3 Any Fund set 22894 21.07.2016 22894 20.07.2016 up under the provisions of ESI Act, 1948 4 Any Fund set 22625 21.08.2016 22625 20.08.2016 up under the provisions of ESI Act, 1948 5 Any Fund set 22800 21.09.2016 22800 20.09.2016 up under the provisions of ESI Act, 1948 6 Any Fund set 22499 21.10.2016 22499 20.10.2016 up under the provisions of ESI Act, 1948 7 Any Fund set 23852 21.11.2016 23852 21.11.2016 up under the provisions of ESI Act, 1948 8 Any Fund set 27446 21.12.2016 27446 19.12.2016 up under the provisions of ESI Act, 1948 9 Any Fund set 27826 21.01.2017 27826 20.01.2017 up under the provisions of ESI Act, 1948 10 Any Fund set 30180 21.02.2017 30180 23.02.2017 up under the provisions of ESI Act, 1948
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11 Any Fund set 30080 21.03.2017 30080 29.03.2023 up under the provisions of ESI Act, 1948 12 Any Fund set 29860 21.04.2017 29862 13.04.2017 up under the provisions of ESI Act, 1948 13 Provident 331182 15.05.2016 331182 12.05.2016 Fund 14 Provident 394638 15.06.2016 394638 13.06.2016 Fund 15 Provident 373577 15.07.2016 373577 15.07.2016 Fund 16 Provident 625224 15.08.2016 625224 12.08.2016 Fund 17 Provident 362217 15.09.2016 362217 14.09.2016 Fund 18 Provident 364594 15.10.2016 364594 13.10.2016 Fund 19 Provident 365721 15.11.2016 365721 12.11.2016 Fund 20 Provident 357040 15.12.2016 357040 12.12.2016 Fund 21 Provident 360333 15.01.2017 360333 13.01.2016 Fund 22 Provident 363293 15.02.2017 363293 13.02.2016 Fund 23 Provident 362221 15.03.2017 362221 09.03.2017 Fund 24 Provident 357840 15.04.2017 357840 14.04.2017 Fund
After considering the fact brought on record, it is seen that delay in
deposits in month of February and March 2017, is of two days and 6
days, which has been stated to be due to technical glitches in the
server of the bank concerned which factor is beyond the control of the
assessee. Rest all the deposits have been made on time. This fact has
been brought on record before us. Accordingly, we hold that, once the
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assessee had made the deposit in the bank account in time but due toglitches in server of the bankif there is marginal delay of 2 days in clearance,then it cannot be held that there is delay in payment on behalf of the assessee or assessee has not paid before the due date. Accordingly, the disallowance made by the AO is hereby deleted. 8. In the result the appeal of the assessee is allowed.
Order Pronounced in Open Court on Nov, 2023
(BR BASKARAN) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Place: Mumbai Date .11.2023 ANIKET SINGH RAJPUT/STENO आदेश की प्रतितलति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीलीय अतधकरण/ ITAT, Bench, Mumbai.
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No. Details Date Initials Designation 1 Draft dictated on Sr.PS/PS 2 Draft Placed before author Sr.PS/PS 3 Draft proposed & placed before the Second JM/AM Member 4 Draft discussed/approved by Second JM/AM Member 5 Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date on which file goes to the AR 10 Date of Dispatch of order
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No. Details Date Initials Designation 1 Draft dictated on Sr.PS/PS 2 Draft Placed before author Sr.PS/PS 3 Draft proposed & placed before the Second JM/AM Member 4 Draft discussed/approved by Second JM/AM Member 5 Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date on which file goes to the AR 10 Date of Dispatch of order