TRITON MARITIME PRIVATE LIMITED,MUMBAI vs. DCIT -5(3) (1) , MUMBAI

The assessee has raised the following grounds of appeal:-

1)“On the facts and in the circumstances of the case, the CIT(A) legally erred in confirming the order of AO wherein a sum of Rs. 9,69,233 was disallowed; the entire sum being the employees contribution of Provident Fund disregarding the fact that these contributions were duly paid on or before the due date of filing the return of income. 1.1 On the facts and in the circumstances of the case, the CIT(A) legally erred in not discussing the submissions made by the appellant and also not following the binding decisions of the Hon'ble Jurisdictional Bombay High Court which were relied on by the appellant i.e. Ghatge Patil Transports Ltd. (368 ITR 749) and Hindustan Organics Chemicals Limited (ITA 399 of 2012) 1.2 On the facts and in the circumstances of the case, the CIT(A), failed to appreciate the fact of that the company is assessed to under provisions of Tonnage Tax and therefore as such no deduction is claimed. The appellant has disallowed the tonnage tax loss at Rs. 2,58,33,967/-, as a result of which this would be tantamount to a double disallowance. 2) The appellant craves leave to add, to alter or amend the Grounds of Appeal on or before the hearing of this appeal.”

We have heard rival submissions and perused the materials available on record. We find that assessee had filed its return of income for A.Y.2019-20 on 26/09/2019 declaring total income of Rs.80,66,830/-. The said return of income was processed u/s.143(1) of the Act determining total income at Rs.91,35,360/-, wherein the ld. CPC Bangalore had added a sum of Rs.9,69,233/- on account of employees contribution to PF & ESI u/s.36(1)(va) of the Act. We find that assessee had suomoto disallowed the provident fund and ESI dues in respect of employees’ contribution which were remitted beyond the due date prescribed in PF & ESI Acts but had remitted within the due date of filing the return of income u/s.139(1) of the Act. We find that assessee had voluntarily disallowed this sum of Rs.9,69,233/- in the return of income which is evident from the M/s. Triton Maritime Pvt. Ltd., computation of income filed before us. From the computation of income, it is evident that assessee is a tonnage tax company paying taxes in respect of tonnage tax income on presumptive basis. Accordingly, the PF & ESI dues of the employees of the assessee company engaged in shipping business were sought to be excluded while computing the tonnage tax income and added in the regular computation of business income by the assessee voluntarily in the return of income. The very same sum of Rs.9,69,233/- was added by the ld. CPC Bangalore as not allowable u/s.43B of the Act. It clearly goes to prove that the disallowance made by the ld. CPC, Bangalore had resulted in double addition. The ld. AR before us had even filed additional ground seeking for reduction of voluntarily disallowance of Rs.9,69,233/- made in respect of employee contribution to PF & ESI in the return of income. We find that this additional ground goes to the root of the matter and the facts relevant for adjudication are also on record and hence, in view of the decision of the Hon’ble Supreme Court in the case of NTPC Ltd., reported in 229 ITR 383, we are inclined to admit the additional ground raised by the assessee and take up the same for adjudication. Moreover, we place reliance on the decision of the Hon’ble Jurisdictional High Court in the case of CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd., reported in 349 ITR 336 that assessee is entitled to make a legitimate claim for the first time before this Tribunal. We find that assessee is seeking relief of exclusion of Rs.9,69,233/- from the returned income in respect of employees’ contribution of PF & ESI. This is legitimate claim of the assessee in view of the decision of the Hon’ble Jurisdictional High Court in the case of CIT vs. Ghatge Patil Transport Ltd., reported in 368 ITR 749. The ld. DR relied on the orders of the lower authorities. This Tribunal has been consistently holding that the amendment

In the result, appeal of the assessee is allowed.