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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
आदेश / ORDER
PER D. KARUNAKARA RAO, AM
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeal)-2, Thane dated 24.06.2016 for assessment year 2010-11.
The assessee has raised following grounds of appeal: “1.The learned CIT(A) erred on facts and in law in upholding the disallowance of Rs. 9,05,153 (9,04,153 sic.) u/s.36(1)(va) on account of alleged delay in payment of employee’s contribution towards provident fund. He failed to appreciate the fact that all the payments are made much before the date of filing of its return of income u/s.139. He further failed to appreciate the settled position in law that
2 ITA No.2091/PUN/2016 A.Y.2010-11
employee’s contribution towards provident fund is allowed if payment is made on or before due date of filing of return u/s.139 of the Act. 2. The appellant craves leave to add, alter, delete or substitute all or any of the grounds of appeal.”
The Ld. Counsel for the assessee referred to an Affidavit dated 06.10.2016
filed by assessee and submitted that there is delay of 4 days in filing this appeal. The
delay is occurred due to resignation of the persons working in accounts department
who were looking after income tax matters. Therefore, relying on the contents of the
Affidavit dated 06.10.2016, the Ld. Counsel of assessee prayed for admitting the
appeal for adjudication condoning the delay in filing the appeal.
After hearing both the sides and considering the contents of affidavit dated
06.10.2016 filed by the assessee, we are of the opinion that the delay of 4 days in
filing appeal is required to be condoned and taken up the appeal for adjudication.
Briefly stated relevant facts of the case are that the assessee is engaged in the
business of supply of manpower to companies and filed return of income declaring
income at Rs.11,69,040/-. In the assessment proceedings, the Assessing Officer
made various additions/disallowance of debit amount under the head Employee’s
provident Fund. As per discussion given in Para-4.4, the Assessing Officer made
disallowance at Rs.9,04,153/- after noting that the assessee belatedly remitted the
subscription to the fund.
With regard to employees contribution to Provident Fund, it is fact that the
assessee did not remit the said subscription as per due date provided in the relevant
statute. However, all the payments were made before the filing of return of income
u/s.139(1) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The
Assessing Officer did not accept the submission of the assessee in this regard. The
Commissioner of Income Tax (Appeal) confirmed the order of Assessing Officer
3 ITA No.2091/PUN/2016 A.Y.2010-11
relying on decision of the Hon'ble Gujarat High Court in the case of Gujarat State
Road Transport Corporation, 41 taxmann.com 100.
Aggrieved with the order of Commissioner of Income Tax (Appeal), assessee
filed the present appeal before us raising solitary ground extracted above.
Before us, the Ld. Counsel for the assessee brought our attention to the fact
that all the payments to Employee’s Provident Fund have been made by the assessee
well before filing of return of income and the same is evident from dates mentioned
in para 4.2 of order of Commissioner of Income Tax(Appeal). He also submitted the
existence of the legal proposition for allowing the claims of the assessee when the
payments are remitted before the due date of filing the return of income. Therefore,
in this case, all payments were made from May, 2009 to April, 2010 i.e. well before
the date of filing return of income i.e. 29th September, 2010 and this fact is
undisputed. Thus, as per the Ld. AR the claim of the assessee needs to be allowed in
favour of the assessee in view of various judgments mentioned in Para-4.3 of the
order of Commissioner of Income Tax (Appeal).
On hearing both the parties and perusing the facts and binding judgments, we
find the ground of assessee is required to be allowed in favour of the assessee in
view of the considered fact that all the payments were made to Employees Provident
Fund much before the due date of filing of return of income. Accordingly, the solitary
ground raised by assessee is allowed.
In the result, appeal of the assessee is allowed.
Order pronounced on 23rd day of March, 2018.
Sd/- Sd/- (सुषमा चावला / Sushma Chowla ) (डी.क�णाकरा राव/D. Karunakara Rao) �या�यक सद�य /JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 23rd March, 2018. SB
4 ITA No.2091/PUN/2016 A.Y.2010-11
आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(Appeal)-2, Thane. 4. The Pr. CIT-2, Thane. 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “एक-सद�य” ब�च, पुणे / DR, ITAT, “SMC” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy // आदेशानुसार / BY ORDER,
�नजी स�चव /Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.