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Income Tax Appellate Tribunal, : ‘D’ BENCH, KOLKATA
Before: Shri P.M. Jagtap & Shri S.S.Viswanethra Ravi
This appeal by the Revenue is against the order dt. 27-07- 2016 of the CIT-A, 12, Kolkata for the A.Y 2012-13, wherein he deleted the impugned disallowances made by the AO on account of delayed payment of employees contribution of PF & ESI u/s. 36(1)(va) of the Act.
At the time of hearing, we find, that neither the assessee nor authorized representative appeared on behalf of the assessee nor any application filed seeking adjournment. Therefore, we proceed to hear the ld.DR for appellant and dispose of the appeal on merits and by perusing the material available on record.
The only issue is to be decided as to whether the CIT-A is justified in deleting the impugned additions made u/s. 2(24)(x) r.w.s 36(1)(va) of the Act in the facts and circumstances of the case.
The brief facts of the case are that the assessee is a firm and engaged in the transport business and filed its return on 28-09-2013 declaring a total income of Rs.1,09,07,560/-. Notices u/s. 143(2) and 142(1) of the Act were issued. In response to which, the AR of the assessee appeared from time to time and furnished various details including audited accounts and tax audit report (TAR) as sought by the AO. On perusal of TAR & other document filed by the assessee the AO found that Employees ‘Contribution to PF/ESI amounting to Rs.25,70,951/- (PF) and Rs.6,36,194/- (ESI) totaling to Rs. 32,07,145/- were deposited after the due date as per Section 2(24)(x) r.w.s 36(1)(va) of the Act. The AO was of the view that since the assessee had failed to deposit the same within the due date specified u/s. 2(24)(x) r.w.s 36(1)(va) of the Act and held it is not allowable deduction and disallowed Rs. 25,70,951/- and added to the total income of the assessee vide an order dt.25-03-2015 passed u/s. 143(3) of the Act.
Aggrieved by such order of the AO, the assessee preferred an appeal before the CIT-A and submitted that the employees’ contribution was deposited before filing of return of income and it is an an allowable deduction and placed reliance on the decision of Hon’ble Supreme Court in the case of Alom Extrusions Ltd reported in (2009) 319 ITR 306(SC) in support of its claim.
The CIT-A placing reliance on the decision of Hon’ble Supreme Court in the case of Alom Extrusions Ltd. reported in (2009) 319 ITR 306(SC) deleted the impugned addition made on account of delayed payment of PF & ESI. Relevant portion of finding of the CIT-A in this regard is reproduced herein below for better understanding:-
“Therefore the appellants case is squarely covered by the said two cases namely Commissioner of Income Tax v/s. Alom Extrusions Ltd. reported in (2009) 319 ITR 306(SC) and CIT Vs. Hindustan Organics Chemicals Ltd. It is not in dispute that Assessee had filed the Return of Income for the A.Y 2013-14 on 28-09-2013. All the payments for the Employees Contribution to ESI were made before the filing of the Original Return of Income Tax, which was reported in the Tax Audit Report in Form 3CD dated 29.09.2013. In view of above findings – it is held that the appellant gets relief on both counts of ESI and PF payments. Hence, amounts of Rs.25,70,951/- on account of delayed payment of provident fund of employees’ contribution and Rs.6,36,194/- on account of delayed payment of Employees’ Contribution of ESI are deleted.”
The ld. DR relied on the order of the AO.
Heard the ld. DR and perused the record. We find that the issue in hand is squarely covered in favour of assessee by the decision of the Hon’ble Supreme Court in the case of Alom Extrusions Ltd reported in (2009) 319 ITR 306(SC). The CIT-A examined the record and found from the Tax Audit Report in Form 3CD dated 29.09.2013 that the employees contribution were deposited before filing the return of income. The CIT-A held the impugned amount of Rs. 32, 07,145/- disallowed on account of delayed payment is an allowable deduction and directed the AO to delete. We find that the impugned amount disallowed towards employees’ contribution to PF and ESI were deposited well within the due date of filing of return of income u/s. 139(1) of the Act. Respectfully following the decision of the Hon’ble Supreme Court in the case of Alom Extrusions Ltd. supra, we find no infirmity in the order of CIT-A and it is justified. Ground nos. 1 & 2 raised by the revenue are dismissed.
In the result, the appeal filed by the revenue is dismissed. Order pronounced in the open court on 09-05-2018