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Income Tax Appellate Tribunal, “SMC” BENCH, CUTTACK
Before: SHRI CHANDRA MOHAN GARG
आयकर अपील�य अ�धकरण, “एस.एम.सी”, �यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, CUTTACK �ी च�� मोहन गग�, �या�यक सद�य के सम� । BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER आयकर अपील सं./ITA No.342/CTK/2018 (�नधा�रण वष� / Assessment Year :2014-2015) The Puri District Co-operative Vs. ITO, Ward-2(2), Milk Producer’s Union Limited, Bhubaneswar Chintamaniswar, Kalpana Area, Bhubaneswar �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAAAT 8507 C (अपीलाथ� /Appellant) (��यथ� / Respondent) .. �नधा�रती क� ओर से /Assessee by : Shri B.K.Das(Written Submission) राज�व क� ओर से /Revenue by : Shri Subhendu Dutta, DR सुनवाई क� तार�ख / Date of Hearing : 04/02/2019 घोषणा क� तार�ख/Date of Pronouncement 05/02/2019 आदेश / O R D E R This appeal has been filed by the assessee against the order of CIT(A)-1, Bhubaneswar, dated 05.06.2018 in First Appeal No.0076/17-18, for the assessment year 2014-2015. 2. The assessee has raised the following grounds of appeal :- “1. The order passed by the learned CIT(Appeals-1), Bhubaneswar is capricious, invalid, illegal and bad in law. 2. That the disallowance of employees contribution to PF to the extent of Rs.15,15,620/-, on the ground of non-deposit within the stipulated time period is arbitrary, wrong & non based on the available facts. 3 The appellant craves leaves to amend, modify, oblige, add to or resigned any or all of the above ground. 3. The facts in brief are that the assessee is a cooperative society operating under OMFED in Puri District, engaged in procurement and
2 ITA No.342/CTK/2018 processing of milk and milk products. The assessee filed return of income
electronically on 27.12.2016 for the A.Y.2014-2015 declaring total income
of Rs.15,15,620/-. The AO completed the assessment assessing total income at Rs.15,15,620/- and passed order u/s.143(3) of the Act, dated
27.12.2016 and disallowed the same as the assessee has not remitted the amount of Rs.15,15,619/- being employees’ contributions towards
EPF within the due dates as specified in the relevant statute. 4. In appeal, the CIT(A) confirmed the disallowance made by the AO.
Now, the assessee is in further appeal before the Tribunal.
Ld. AR has filed written submission and submitted that employee’s
provident fund contribution which had been remitted belatedly beyond the
due date prescribed under Employee’s Provident Fund Act, 1962 but
before the due date of filing of return of income should not be disallowed
u/s.43B of the Income Tax, Act, 1962 and prayed for allowing the appeal
of the assessee.
Ld. DR, on the other hand, vehemently supported the orders of
authorities below and submitted that the CIT(A) has rightly relied on the
decision of Hon’ble Gujarat High Court in the case of CIT Vs. Gujarat
State Road Transport Corporation, reported as 366 ITR 170 (Guj) and
prayed for dismissal of the appeal of assessee.
I have heard the arguments of ld. DR and gone through the written
submission filed by the ld. AR of the assessee and perused the relevant material placed on record of the Tribunal. I find that the assessee has
deposited the EPF amount of Rs.15,15,619/- before due date of filing of
3 ITA No.342/CTK/2018 the return u/s.139(1) of the Act. The addition was made on the ground that the employees’ contribution to EPF was not deposited within the time prescribed under the P.F.Act. I also find that no disallowance can be made for deduction of the same u/s.36(1)(va) r.w.s.2(24)(x) of the Act in view of the decision of Hon’ble Supreme Court in the case of Rajasthan State Beverages Corporation Ltd., [2017] 84 taxmann.com 185 (SC), where it was held as under :- “ Section 43B, read with section 36(1)(va), of the Income-tax Act, 1961 - Business disallowance - Certain deductions to be allowed only on actual payment (PF and ESI contribution) - High Court by impugned order held that amount claimed on payment of PF and ESI having been deposited on or before due date of filing of returns, same could not be disallowed under section 43B or under section 36(1)(va) - Whether SLP against said impugned order was to be dismissed - Held, yes [Para 2] [In favour of assessee]” 9. In the present case, neither the AO nor the ld. CIT(A) has disputed the fact that the assessee has deposited the impugned amount of EPF before due date of filing of return u/s.139(1) of the Act. Therefore, respectfully following the ratio laid down by the Hon’ble Supreme Court in the case of Rajasthan State Beverages Corporation Ltd(supra), I direct the AO to allow the claim of the assessee regarding EPF. Accordingly, the sole issue/ ground of appeal of the assessee is allowed. 10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on this 05/02/2019. Sd/- (CHANDRA MOHAN GARG) �या�यक सद�य / JUDICIAL MEMBER कटक Cuttack; �दनांक Dated 05/02/2019 �.कु.�म/PKM, Senior Private Secretary
4 ITA No.342/CTK/2018 आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Appellant- 1. The Puri District Co-operative Milk Producer’s Union Limited,Chintamaniswar, Kalpana Area, Bhubaneswar ��यथ� / The Respondent- 2. ITO, Ward-2(2), Bhubaneswar आयकर आयु�त(अपील) / The CIT(A), 3. आयकर आयु�त / CIT 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कटक / DR, ITAT, Cuttack 5. गाड� फाईल / Guard file. 6. स�या�पत ��त //True Copy// आदेशानुसार/ BY ORDER,
(Senior Private Secretary) आयकर अपील�य अ�धकरण, कटक / ITAT, Cuttack