PR COMMISSIONER OF INCOME TAX JAIPUR-II vs. RAJ RAJYA VIDHUT PRASARAN NIGAM LTD

Counsel for the appellant has framed the following question(s):- “(i) Whether in the facts and circumstances of the case the ITAT was justified in law in deleting addition of Rs.23908425/- made for depositing the emoployee’s contribution to GPF, CPF & ESI beyond the prescribed time limit provided in the respective Acts. (ii) Whether in the facts and circumstances of the case the ITAT has erred in holding that employee’s contribution to PF & ESI are governed by the provision of Section 43B and not by section 36(1) (va) r.w.s. 2 (24) (x) of I.T. Act. “

However, the issue is now covered against the department by the decision of this court in Commissioner of Income Tax, Jaipur-II, Jaipur Vs. Jaipur Vidut Vitran Nigam Ltd., D.B. Income Tax Appeal No.278/2011 and other connected matters decided on 06th January, 2014 which reads as under:- “1. These Income Tax Appeals under Section 260A of the Income Tax Act (for short I.T. Act) are directed against the orders dated 30/09/2008, 20/08/2010, 30/09/2008, 30/09/2008 & 30/09/2008 of Income Tax Appellate Tribunal, Jaipur Bench, Jaipur (for short ITAT) arising out of ITA No.825/JP/2008 for Assessment Year 2005-06, ITA No.333/JP/2010 Assessment Year 2006-07, ITA No.826/JP/2008 Assessment Year 2003-04, ITA No.76/JP/2008 Assessment Year 2001-02 and ITA No. 827/JP/2008 Assessment Year 2004-05 respectively.

Since the controversy involved is identical, these Income Tax Appeals are being decided by this common order.

The brief facts as reveal from the record are that a claim was made by the respondent-assessee about payment of GPF, CPF and ESI and the said amount was claimed under Section 36(1)(va) read with Section 43B of the I.T. Act. It is the claim of the revenue that the said amount though paid by the assessee, but was not paid within the due date as given under the relevant Act of GPF, CPF and ESI and, therefore, the said amount could not be allowed either under Section 36(1)(va) and even under Section 43B of the I.T. Act as it was not paid on or before the due date of the respective Acts.

It is the claim of the respondent-assessee that though the amount could not be paid on or before the due date under the respective Act, but the same was deposited on or before the due date of furnishing of the Income Tax returns under Section 139 of the I.T. Act and, therefore, in view of Section 43B read with Section 36(1)(va) of the I.T. Act the entire amount was allowable.

Counsel for the revenue submitted that the amount had to be deposited on or before the due date of the respective GPF Act, CPF Act and ESI Act and since the same was not paid on or before the due date of the respective Acts, therefore, it was not even allowable under the provisions of Section 36(1) (va) of the I.T. Act nor could be allowed under Section 43B of the I.T. Act.

We have considered the arguments advanced by the learned counsel for the revenue and have also gone through the impugned orders. In our view no substantial question of law arise out of the orders of the ITAT as it is an admitted fact that the entire amount was deposited by the respondent-assessee at least on or before the due date of filing of the returns under Section 139 of the I.T. Act and being a concurrent finding of fact by the respective authorities and in the light of the judgments rendered by this Court in the case of Commissioner of Income Tax vs. M/s State Bank of Bikaner & Jaipur (D.B. Income Tax Appeal No.177/2011) so No.189/2011), of even date wherein it has been held that if the amount has been deposited on or before the due date of filing the return under Section 139 and admittedly it was deposited on or before the due date then the amount cannot be disallowed under Section 43B of the I.T. Act or under Section 36(1) (va) of the Act. In fact in the above matters one of the party is same as in the present appeals, therefore, the issue is no more res-integra in the light of judgments of this Court referred to supra and, in our view, no substantial question of law arises out of the impugned orders of the ITAT, which may require attention of this Court.

We find no merit in these appeals and the same are hereby dismissed in limine.”

In view of the above, this appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. Mohit Grover Sr. No.25.