DECOR HOME (I) PVT. LTD.,,SURAT vs. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-1(1)(2),, SURAT

आदेश /O R D E R PER O.P.MEENA, AM: The appeal filed by the Assessee is directed against the order of 1. ld. Commissioner of Income Tax(Appeals)-1, Surat(in short “the CIT(A)”) dated 17.06.2016 pertaining to Assessment Year 2012-13.

Grounds raised by the Assessee read as under: 2. “1. As regards disallowance u/s.36(1)(va) of the Act. Rs.2,04,282/-. 1.1 The Ld CIT(A) has erred and was not justified on the facts of the case and in law in confirming the disallowance of the payment of Employee’s share of PF and ESIC made

Décor Home (I) Pvt. Ltd., Vs. ACIT, Cir-1(1)(2),Surat/ITA No.2207/AHD/2016 : A.Y.2012-13 Page 2 of 4

belatedly but before the due date of filling of return of Income. 2. As regards disallowance of Rs.1,47,522/- on ad-hoc basis @20.00% out of certain expenses. 2.1 The Ld CIT(A) has erred and was not justified on the facts of the case and in law in confirming the ad hoc disallowance to the extent of 10.00% against the 20.00% made by the Ld Assessing Officer, out of total expenditure debited under the head office exp., Repairs & Maintenance and miscellaneous exp.” Ground No. 1 relates to confirming the disallowance of 3. Rs.2,04,282/- pertaining payments of PF/ESIC paid beyond the due date prescribed under the relevant statutes.

The learned counsel for the assessee submitted that the CIT (A) 4. has confirmed the disallowance following the judgement of Hon`ble High Court of Gujarat 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. The appeal filed by GSRTC has been admitted by the Hon`ble Supreme Court. Therefore, the issue may be restored to the file of the CIT (A) to decide as and when SLP is decided.

Au contraire, the ld.Departmental Representative relied on the 5. order of ld.CIT(A).

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We have heard the rival submissions and perused the relevant 6. 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.

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Ground No.2 of the appeal is not pressed before us; therefore, this 7. ground of appeal is “dismissed as not pressed”.

In the result, appeal filed by the Assessee is partly allowed. 8.

The order pronounced in the open court on 24.07.2019. 9.

Sd/- Sd/- (BHAVNESH SAINI) (O.P.MEENA) (�याियकसद�यतथा/JUDICIAL MEMBER) (लेखासद�यकेसम� /ACCOUNTANT MEMBER) सुरत/ Surat, �दनांक Dated: 24th July, 2019/S.Gangadhara Rao, Sr.PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat