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Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
The appeal filed by the revenue is against the order of Ld. CIT(A)-5, Kolkata dated 26.07.2016 for AY 2012-13.
Ground no. 1 of the revenue’s appeal reads as under:
1. Whether on the basis of facts & circumstances of the case and in law Ld. CIT(A) erred in not considering the provision of section 36(1)(va) and thereby deleting the addition made under section 36(1)(va) of the Income Tax Act, 1961.
Brief facts of the case are that the AO made the disallowance of Rs.3,30,487/- by invoking sec. 36(1)(va) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) on account of making payment for the employee’s PF after the due date. On appeal, the Ld. CIT(A) deleted the disallowance on the ground that the contribution was claimed to have Ambuja Reality Development Ltd.., AY- 2012-13 been deposited before the due date as provided u/s. 139(1) of the Act for filing return. Aggrieved, revenue is before us.
We have heard rival submissions and gone through facts and circumstances of the case. We find that the employees’ PF payments are within the due date of filing of return of income by the assessee u/s. 139(1) of the Act and once these payments are within the said due date, the issue is covered by the judgment of jurisdictional High Court in the case of CIT Vs. M/s. Vijay Shree Limited vide ITAT No. 245 of 2011 in GA No.2607 of 2011 dated 7th September, 2011, wherein it has been held as under: “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.”
We note that the issue before us is no longer res itegra because it has been decided by Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd. Supra, that in case the assessee remitted the PF on or before the due date of filing of return u/s. 139(1) of the Act, deduction in respect to the remitted amount of PF deducted on account of employee’s contribution before due date of filing of return u/s. 139(1) of the Act, hence, we do not find any infirmity in the order of the Ld. CIT(A) which we uphold and, therefore, we dismiss this ground of appeal of revenue.
5. Ground no. 2 of revenue’s appeal is as under:
“2. Whether on the basis of facts & circumstances of the case and in law Ld. CIT(A) erred in deleting the disallowance made u/s. 14A read with rule 8D(2)(ii) and rule 8D(2)(iii) of the Income Tax Act, 1961 without considering the findings and observations of the AO.”
Ambuja Reality Development Ltd.., AY- 2012-13
Brief facts of the case are that the AO disallowed the expenses of Rs.75,49,934/- by invoking sec. 14A read with Rule 8D of the Income Tax Rules, 1962. On appeal, the Ld. CIT(A) deleted the disallowance by relying on the decisions of CIT Vs. Cortech Energy Pvt. Ltd. 223 Taxman 130 and REI Agro Ltd. Vs. DCIT 144 ITD 141 on the ground that as no dividend was earned disallowance u/s. 14A of the Act read with Rule 8D of the Rules is not called for. Aggrieved, revenue is before us.
We have heard rival submissions and gone through the facts and circumstances of the case. We find that the Ld. CIT(A) relying on the decisions in the case of Cortech Energy Pvt. Ltd. (supra) and REI Agro Ltd. (supra) deleted the disallowance of expenses of Rs.75,49,934/- by observing as under:
….. As regards the clam that Rule 8D/14A applies only in respect of shares which yielded dividend income, the cited decisions do seem to favour the appellant. As no dividend is claimed to have been earned disallowance u/s. 14A/Rule 8D(2)(ii) is not called for in view of the above decisions.
We find that the factual finding as recorded by the Ld. CIT(A) was not controverted by the Ld. DR before us by providing any material, therefore, we do not find any justification to interfere in the aforesaid order of the Ld. CIT(A) and hence, the same is hereby confirmed. This ground of appeal of revenue is, therefore, dismissed.
In the result, appeal of revenue is dismissed.
Order is pronounced in the open court on 14.02.2018