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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI PRAMOD KUMAR&
PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the Assessee is directed against the order dated 02.06.2017 passed by the Commissioner of Income Tax (Appeals) – Gandhinagar, Ahmedabad arising out of the order dated 22.03.2016 passed by the Asstt. Commissioner of Income Tax, Circle – Mehsana Circle, Mehsana under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2013-14. 2. The issue relates to the order passed by the Learned CIT(A) in confirming disallowance of Rs.14,14,348/- and Rs.60,214/- being the amounts Assessment Year 2013-14 of Employees’ Contribution to Provident Fund and Employees’ State Insurance Contribution which were paid belatedly by the appellant before us.
During the course of assessment proceeding, upon perusal of the Profit and Loss account it appeared that the appellant has debited Rs. 20,70,193/- towards Contribution to Provident Fund and other Funds. It further revealed that the assessee has deposited Rs.14,14,348/- being Employees’ Contribution to Provident Fund after due date prescribed by the Provident Fund Act and Rs.60,214/- towards ESIC. Relying upon the judgment passed by the Hon’ble Juri ictional High Court in the case of CIT-vs-Gujarat State Road Transport Corporation reported in [2014] 41 taxmann.com 100 (Gujarat) wherein it was held that the Employees’ Contribution to Provident Fund and Employees’ State Insurance Contribution is not covered by Section 43B and is only allowable as a deduction u/s 36(1)(va) if paid by the due date prescribed therein the Learned AO disallowed the same, which was confirmed by the Learned CIT(A). Hence the instant appeal before us.
At the time of hearing of the instant appeal, the Learned Counsel appearing for the assessee submitted before us that the amount has been paid belatedly before the due date for filing of return of income u/s 139(1) of the Income Tax Act, 1961. The details whereof were not taken into consideration by the authorities below in its proper prospective as also contended by the Learned Counsel appearing for the assessee. He therefore prays for setting aside the issue to the file of the Learned AO for verification of the same and to pass the order in accordance with law. He, further relied upon the judgment in support of his case passed by the Co-ordinate Bench in ITA Assessment Year 2013-14 No.1655/Ahd/2015 for A.Y, 2011-12 in the matter of Sharma Cars Pvt. Ltd.- vs-DCIT, Circle – 8, Ahmedabad. On the other hand, Learned DR relied upon the order passed by the authorities below. However, he has not raised any serious objection so as to setting aside the issue to the authorities below for verification of the records and to pass orders accordingly.
We have perused the judgment relied upon; it deals with the issue of payments made within the grace period or not. However, having heard the Learned Counsel appearing for the parties, having regard to the facts and circumstances of the case, we are of the view to set aside the issue to the file of the Learned AO to verify the details regarding date of payment towards Employees’ Contribution to Provident Fund and Employees’ State Insurance Contribution as made by the appellant before us and to pass orders strictly in accordance with law upon giving an opportunity of being heard to the assessee and also upon taking into consideration the evidence which the assessee may choose to file at the time of said hearing before the Learned AO.
In the result, assessee’s appeal is thus partly allowed. This Order pronounced in Open Court on 18/06/2019 ( PRAMOD KUMAR ) ( Ms. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad; Dated 18/06/2019 Assessment Year 2013-14 आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. संबं"धत आयकर आयु"त / Concerned CIT 4. आयकर आयु"त(अपील) / The CIT(A)-Gandhinagar, Ahmedabad.
"वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड" फाईल / Guard file. आदेशानुसार/ BY ORDER, स"या"पत ""त //// उप/सहायक पंजीकार (Dy./Asstt.