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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR & SHRI WASEEM AHMED, ACCOUNTANT MEMEBR
The appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), Vadodara-2 (‘CIT(A)’ in short) vide Appeal No. CIT(A), Vadodara-2/10455/2015-16 dated 18.08.2020 arising in the assessment order dated 03.02.2016 passed by the Borosil Limited Vs. DCIT] A.Y. 2018-19 - 2 - Assessing Officer (AO) under s. 206C(6A)/206C(7) of the Income Tax Act, 1961 (the Act) concerning AY. 2014-15.
The ground of appeal raised by assessee reads as under:
“1. The order passed by the learned CIT(A) is bad in law, being contrary to the provisions of the Act and without considering the written submission of the appellant.
2. The Learned CIT(A) has erred in disallowing the contribution received from employees towards Employees Provident Fund and ESIC fund amounting to Rs. 23,12,880/- on the ground that the same is not paid on or before the due dates as per the provisions of respective acts. The CIT(A) has failed to consider the provisions of section 43B of the act. As per first proviso, if the payment of contribution is made on or before the due date for furnishing return of income then same to be allowed. In view of this CIT(A) is not justified in disallowing the same. It is therefore submitted that CIT(A) be directed to allow the same as rightly claimed by the appellant.”
The learned CIT(A) passed order on 22.11.2021. The assessee instituted appeal on 31.01.2022. However, Registry noted that present appeal is time barred by 9 days. After hearing to the parties, we are of the view that above delay can be condoned on the basis of Hon’ble Supreme Court’s directions owing to pandemic in Suo Moto Writ Petition (Civil) No(s).3/2020 dated 23.03.2020 which ultimately was extended upto 28th February, 2022 in Miscellaneous Application No.21 of 2022 dated 10th January, 2022. Respectfully following the Hon’ble Supreme Court order, we condone the delay of 9 days.
The only disputed issue in this appeal, as reflected in the relevant grounds of appeal, is the disallowance sustained by the learned CIT(A) to the extent of Rs.23,12,880/- on account of late payment of employees' contribution to P.F. and ESIC. The Assessing Officer made total Borosil Limited Vs. DCIT] A.Y. 2018-19 - 3 - disallowance of Rs.23,12,880/-. The disallowance of the remaining amount of Rs.23,12,880/- was confirmed by the learned CIT(A).
At the time of hearing ld. A.R. Shri Nitesh Thakkar fairly conceded that matter is against the assessee in view of the Hon’ble Gujarat High Court order in the case of CIT vs. GSRTC and requested that he does not want to contest the appeal. Since ld. A.R. has conceded himself and matter is against him squarely covered by judgment of Hon’ble Gujarat High Court in the matter of CIT vs. GSRTC 366 ITR 170 wherein it is held as under:
"Section 43B, read with section 36(1)(va) of the Income-tax Act, 1961 - Business disallowance — Certain deductions to be allowed on actual payment (Employees contribution) - Whether where an employer has not credited sum received by it as employees' contribution to employees' account in relevant fund on or before due date as prescribed in Explanation to section 36(1)(va), assesses shall not be entitled to deduction of such amount though he deposits same before due date prescribed under section 43B i.e., prior to filing of return under section 139(1) -Held, yes - Assesses State transport corporation collected a sum being provident fund contribution from its employees - However, it had deposited lesser sum in provident fund account — Assessing Officer disallowed same under section 43B -However, Commissioner (Appeals) deleted disallowance on ground that employees contribution was deposited before filing return - Whether since assessee had not deposited said contribution in respective fund account on date as prescribed in Explanation to section 36(1 )(va), disallowance made by Assessing Officer was just and proper - Held, yes [Para 8] [In favour of revenue]
Since, matter is squarely covered against the assessee by the judgment of Hon’ble Jurisdictional High Court, thus, in the meanwhile learned AR requested that matter relating to late payment of PF & ESIC is pending for adjudication before the Hon’ble Supreme Court. Therefore, learned AR requested to set aside to the file of learned AO to the effect that whatever will be the outcome of matter pending before the Hon’ble Supreme Court, same shall be applicable to the present appeal. Thus, we accept plea of the assessee and set aside the matter to the file of the AO to Borosil Limited Vs. DCIT] A.Y. 2018-19 - 4 - wait for outcome of the Hon’ble Supreme Court case and as ad when matter will be decided by the Hon’ble Apex Court, accordingly AO shall decide the matter as per law. Thus, appeal of the assessee is allowed for statistical purposes.
In the result, the appeal filed by the Assessee is allowed for statistical purposes.
This Order pronounced in Open Court on 11/05/2022
Sd/- Sd/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad: Dated 11/05/2022 True Copy S.K.SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।