SRG EARTH RESOURCES PVT. LTD.,KOLKATA vs. PCIT-2, KOLKATA

O R D E R

PER SONJOY SARMA, JUDICIAL MEMBER:

Assessment order u/s 143(3) of the Income-tax Act, 1961was passed on 17.10.2019 determining total income of Rs. 2,30,49,880/-

“Whereas the undersigned had called for and examined the record of your case and it is considered that the impugned assessment order passed u/s 143(3) of the I.T.Act, 191 by the JCIT (OSD), Circle-5(1), Kolkata on 17.10.2019 for AY 2017-18 is prima facie, erroneous insofar as it is prejudicial to the interests of the revenue for the following reasons:

In the instant case, the assessee company had failed to pay Employees Contribution of Provident Fund amounting to Rs. 1,16,80,028/- within the due date. Failure to pay within due date the assessee company was not entitled to deduction u/s 36(1)(va) of the I.T.Act, 1961 and the same was required to be added back to the total income of the assessee company. As the said amount was not added back to the total income of the assessee, it resulted in an under assessment of income of Rs. 1,16,80,028/- having potential tax effect of Rs. 38,61,768/-.”

i. That the Ld. Pr. CIT erred in law as well as in facts in treating and holding the order passed /s. 143(3) of the Income Tax Act, 1961 Dt. 17- 10-2019 as passed by the Ld.AO, as erroneous in so far as prejudicial to the interests of the revenue in as much as in view of the facts and circumstances of the case, no such treatment was at all called for. ii. That the Ld. Pr. CIT erred in law as well as in facts in setting aside the order U/s. 143(3) Dt. 17-10-2019 to the file of the Ld. AO to pass an appropriate order for the alleged reason that in view of the amendments carried to section 36(1)(va) by way of insertion on Explanation 2 and to section 43B by way of insertion of Explanation 5, the amount of Rs. 1,16,80,028/- paid beyond the due dates under the PF and ESI laws was not added back to the total income of the assessee resulting in an under assessment of income to the extent of Rs. 1,16,80,028/-, in as much as in view of the facts and circumstances of the case, no such directions were at all called for. iii. That the Ld. Pr. CIT erred in law as well as in facts in not considering the decision of the Jurisdictional Hon'ble Calcutta High Court in the case of CIT Vs. Vijay Shree Ltd. [224 Taxman 12(Cal.)(Mag.)] while holding the order U/s. 143(3) Dt. 14-12-2018 as erroneous in as much as in view of the facts and circumstances of the case, such act of the Ld. Pr. CIT is contrary to the Principles of law and legal jurisprudence. iv. That the appellant craves leave to add, alter, change and/or modify any of the grounds of appeal at or before hearing of the appeal and claim further relief or reliefs which is necessary for the ends of justice.”

5. At the outset, Ld. Counsel of the assessee company through its ground no. 3 in the instant appeal placed strong reliance on the decision of Hon’ble Jurisdictional High Court of Calcutta in the case of CIT v. Vijay Shree Ltd. [2014] 224 Taxman 12 (Cal) which upheld the allowability of its claim of deduction in respect of deposit of employee contributions towards Provident Fund and ESIC in the financial year 2015-16 relevant to the assessment year 2016-17 under consideration. Ld. Counsel submitted that even though there was delay in the depositing of employees contribution towards provident fund and ESIC for the year under consideration, most of the contributions had been deposited during the financial year itself for which he referred to tabulated details in clause 20(b) of the Tax Audit Report placed at page 29 to 30 of the paper book on record. Ld. Counsel further submitted that the outstanding liabilities as on 31.03.2017 towards provident fund and ESIC were deposited as under:-

“a. Employees Contribution towards PF Rs. 20,55,306/- b. Employees Contribution towards ESIC Rs. 3,28,906/- The same has been deposited as follows:

Employees’ Contribution Provident Fund Employees’ Contribution Payment Detail ESIC Payment Detail Payment Date Amount (in Payment Date Amount (in Rs.) Rs.) 08/04/2017 23,316 08/04/2017 1,57,809 15/04/2017 44,708 10/04/2017 1,60,565 24/04/2017 11,186 15/04/2017 7,42,156 26/04/2017 2,382 17/04/2017 11,680 28/04/2017 21 19/04/2017 4,975 29/04/2017 14 28/04/2017 3,04,631 06/05/2017 76,156 08/05/2017 8,016 16/05/2017 60,639 11/05/2017 3,77,613 23/06/2017 1,10,484/- 23/05/2017 2,87,861 Total 3,28,906 Total 20,55,306 Ld. Counsel submitted that all the amounts outstanding as on 31.03.2017 were deposited before the due date of filing of return u/s 139(1) of the Act.

For that, let us take the guidance of judicial precedence laid down by the Hon’ble Apex Court in the case of Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83 (SC) wherein their Lordships have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer’s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii) Assessing Officer’s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; [because AO has to discharge dual role of an investigator as well as that of an adjudicator] then in aforesaid any of the events, the order passed by the AO can be termed as erroneous order. Looking at the second limb as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue, one has to understand what is prejudicial to the interest of the revenue. The Hon’ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the AO. Their Lordships held that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law.

Presuming that the impugned order u/s 263 is upheld, the decision of Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd (supra) governs the assessment order arising from giving its effect on the treatment of allowability of claim for deposit of employee contributions towards provident fund and ESIC before the due date of filing of return u/s 139(1) for the impugned year. The relevant portion from the decision of Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd (supra) is reproduced as under:-

“The only issue involved in this appeal is as to whether the deletion of the addition by the Assessing Officer on account of Employees ‘ Contribution to ESI and PF by invoking the provision of Section 36(1)(va) read with Section 2(24)(x) of the Act was correct or not. It appears that the Tribunal below, in view of the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., reported in 2009 Vol.390 ITR 306, held that the deletion was justified. Being dissatisfied, the Revenue has come up with the present appeal. After hearing Mr. Sinha, learned advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees’ Contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal.”

Order pronounced in the open court on 28.09.2022.