MINILEC INDIA PRIVATE LIMITED,PUNE vs. DEPUTY COMMISSIONER OF INCOME TAX, PUNE

आदेश / ORDER PER ANIL CHATURVEDI, AM :

Assessee is a company stated to be engaged in the business of manufacturing of Electronic products and Bio-Diesel. Assessee electronically filed its return of income for A.Y. 2008-09 on 21.04.2009

declaring total income at Rs.31,92,770/-. The case was selected for

scrutiny and thereafter assessment was framed u/s 143(3) of the Act

vide order dt.31.12.2010 and the total income was determined at

Rs.49,43,423/-. Aggrieved by the order of AO, assessee carried the

matter before Ld.CIT(A), who vide order dated 16.04.2012 (in appeal

No.PN/CIT(A)-I/DCIT Cir.11(2) Pn/345/10-11) dismissed the appeal of

assessee. Aggrieved by the order of Ld.CIT(A), assessee is now in

appeal and has raised the following grounds :

“1. The learned AO and learned CIT(A) erred in law and on facts in not granting the deduction of employees' contribution to Provident fund, amounting to Rs. 4,81,077/- u/s 36(1)(va) of the ITA, 1961, without appreciating the fact that the said payment was within the due date specified by the said Act, considering the grace period for payment.

wish to press ground Nos.3 to 5. Hence, the same are dismissed as

not pressed. The remaining grounds for adjudication i.e., grounds 1

and 2 being inter-connected are considered together.

the present appeal. Ld.A.R. filed the sworn affidavit of Manager

(Accounts) of assessee company stating the reasons for the delay in

filing the appeal. He has also filed the affidavit of the Managing

Director of the company explaining the reasons which has lead to the

delay in filing the present appeal. He further submitted that the delay

in filing the present appeal was not on account of malafide intention.

He submitted that there was frequent turnover of employees handling

taxation related matters and due to multiplicity of tax proceedings for

A.Y. 2008-09, confusion prevailed over the assessee’s staff. In support

of the contention of multiplicity of proceedings, he pointed to the

Chart of events showing various proceedings at different levels. He

further submitted that assessee had filed all the appeals before the

appropriate authorities within the specified time and it was the only

captioned appeal where there was delay. He further submitted that

when substantial justice was pitted against technicality, the cause of

justice should be preferred and for the aforesaid proposition, he also

placed reliance on certain decisions. He prayed that the delay in filing

the appeal be condoned. The Ld. D.R. objected to the prayer of the

Ld.A.R. seeking condonation of delay. He submitted that the reasons

stated for the delay in the affidavit are not at all sustainable and he

also relied on the decision in the case of Vama Apparels (India) (P.)

Ltd., Vs. ACIT reported in (2019) 102 taxmann.com 398 (Bom). He

thus seriously objected to the application for condonation of delay.

submitted that there was delay in depositing of employees

contribution of P.F., but however the amounts were deposited with the

appropriate authorities before the filing of return of income. In such a

situation, he submitted that the issue is covered in assessee’s favour

by the decision of Hon’ble Bombay High Court in the case of CIT Vs.

Ghatge Patil reported in 368 ITR 749. He therefore submitted that

considering the totality of the facts, the delay in filing the appeal be

condoned.

through the sworn affidavit filed by the assessee and heard the

Ld.A.R. It is an undisputed fact that there was delay of 1644 days. It

is also a fact that assessee has pointed out that there was multiplicity

of proceedings for the year under consideration. Assessee has also

filed affidavit of the Manager (Accounts) and the Managing Director of

the assessee company stating the reasons including frequent employee

turnover handling the taxation related matters. On merits, it is

Ld.A.R.’s contention that the issue is covered in assessee’s favour by

the decision of Hon’ble Bombay High Court.

justice and technical considerations are pitted against each other, the

cause of substantial justice deserves to be preferred and that

rendering substantial justice should be the paramount consideration

rather than rejecting on hyper-technicalities. At this moment, it would

be relevant to refer to the observations made by Hon’ble Bombay High

Court in the case of Sitaldas K. Motwani & DGIT reported in (2010)

323 ITR 223 (Bom).

“15……….The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parties by disposing of the matters on merit.

The expression "genuine" has received a liberal meaning in view of the law laid down by the Apex Court referred to hereinabove and while considering this aspect, the authorities are expected to bare in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. The approach of the authorities should be justice oriented so as to advance cause of justice.”

In the light of the aforesaid decision and in the absence of any

material to demonstrate that the delay in filing the appeal was without

malafide intention, I am of the view that the delay in filing the appeal

by the assessee cannot be considered to be with malafide intention or

was a deliberate on its part. Further even on merits, it is Ld.A.R.’s

contention that the issue is covered in favour of assessee by the

decision of Hon’ble Bombay High Court which fact has not been

controverted by Revenue. Considering the totality of the aforesaid

facts, I condone the delay and admit the appeal.

issue involved in the appeal was with respect to non-granting of

deduction of employees’ contribution to Provident Fund u/s 43B of the

Act. He submitted that Hon’ble Bombay High Court in the case of CIT

Vs. Ghatge Patil Transports Limited (supra) has held that Section 43B

of the Act is applicable to both the employees and employees

contribution. I find that the Hon’ble Bombay High Court has held that

Sec.43B of the Act is applicable to employees and employee’s contribution. Before me, it is assessee’s contention that the employee’s contribution of P.F. has been deposited with the appropriate authorities within the grace period allowed by the authorities and also before the filing of return of income. In such a situation, following the decision of Hon’ble Bombay High Court in the case of Ghatge Patil (supra), I am of the view that no disallowance is called for and assessee is eligible for deduction u/s 43B of the Act. I therefore direct accordingly. Thus, the ground of assessee is allowed.

Order pronounced on 16th day of October, 2019.

/- Sd/- (ANIL CHATURVEDI) लेखा सद�य / ACCOUNTANT MEMBER

पुणे Pune; �दनांक Dated : 16th October, 2019. Yamini

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. CIT(A)-1, Pune. 4. Pr. CIT-1, Pune. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “एक सद�य” / DR, ITAT, “SMC” Pune; गाड� फाईल / Guard file. 6.

आदेशानुसार/ BY ORDER // True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.