BLISS TREE INFRACON PVT. LTD.,DELHI vs. ACIT, CIRCLE- 5(1), NEW DELHI

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ITA 7546/DEL/2017Status: DisposedITAT Delhi26 July 2018AY 2014-154 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The tribunal set aside the CIT(A)'s order on the commission payment and remitted it back for admitting additional evidence. For the delayed deposit of ESI/EPF, the tribunal deleted the addition, following Supreme Court and Delhi High Court judgments.

What were the facts?

The assessee claimed commission payment which was disallowed by the AO. The CIT(A) refused to admit additional evidence regarding this payment. Another disallowance was made for delayed deposit of employees' share of ESI/EPF.

What were the issues?

Whether the CIT(A) erred in not admitting additional evidence for commission payment. Whether disallowance for delayed deposit of employees' ESI/EPF contribution is justified when paid before the due date of filing the return.

Which sections of the Income-tax Act were involved?

Section 43B,Section 139(1)

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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ NEW DELHI

Before: Mr. R.S. SYAL

Hearing: 25.7.2018Pronounced: 26.7.2018

This appeal by the assessee is directed against the order passed by the CIT(A) on 28.9.2017 in relation to the A.Y. 2014-15.

2.

The assessee is aggrieved against the non admission of additional evidence by the learned CIT(A) in support of payment of commission to parties, for which the addition was made.

3.

Briefly stated the facts of the case are that the assessee claimed payment of commission amounting to Rs. 10,65,638/-. The AO disallowed the same. The assessee requested the learned CIT(A) to admit additional evidence in support of the payment of such commission which the learned CIT(A) refused to do. Without going into the merits of addition, I consider it expedient to set aside the impugned order on this score and remit the matter to the file of the learned CIT(A) with a direction to admit the additional evidence which the assessee proposes to file before him in support of genuineness of commission of payment and thereafter decide the issue as per law.

4.

The other ground in this appeal is against the confirmation of disallowance of Rs. 53,451/- for delayed deposit of ESI / EPF employees’ share. During the course of assessment proceedings, it was noticed that the assessee deposited the amount of employees’ contribution towards EPF and ESI belatedly. The details of due date and actual payment have been set out on page 5 of the assessment order. He, therefore, made disallowance of Rs.53,451/-, which came to be affirmed in the first appeal.

5.

I have heard the rival submissions and perused the relevant material on record. It is found that the issue raised here is no more res integra. The Hon’ble Supreme Court in the case of CIT v. Alom Extrusions Limited (2009) 319 ITR 306 (SC) has held that the amendment to first proviso and omission of the second proviso to section 43B by the Finance Act, 2003 is retrospective. The Hon’ble Delhi High Court in the case of CIT v. Aimil Limited (2010) 321 ITR 508 (Delhi) has allowed deduction in respect of employees’ share when the amount was paid before the due date. When I consider these two judgments, it becomes patent that both the employer’s and employees’ contribution are allowable as deduction if the amount of provident fund etc., though belatedly, but is paid before the due date of filing of return u/s 139(1) of the Act.

6.

Adverting to the facts of the instant case, it is seen as an admitted position that the assessee deposited the employees’ contribution towards EPF and ESIC before the due date u/s 139(1) of the Act. Respectfully following the aforenoted judgment of the Hon’ble jurisdictional High Court, I order for the deletion of the addition sustained in the first appeal on account of late deposit of employees’ contribution to the Provident fund.

7.

In the result, the appeal is partly allowed.

(Order pronounced in the open court on 26.07.2018.)

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