ODISHA BRIDGE & CONSTRUCTION CORPORATION LTD.,BHUBANESWAR vs. ACIT, CIRCLE-2(2), BHUBANESWAR

आयकर अपील�य अ�धकरण, कटक �यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAVAN KUMAR GADALE, JM आयकर अपील सं./ITA No.193/CTK/2016 (�नधा�रण वष� / Assessment Year :2008-2009) Odisha Bridge & Vs. ACIT, Circle-2(2), Construction Corporation Bhubaneswar Ltd, Setu Bhawan, Nayapalli, Bhubaneswar �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAACO 2565 M (अपीलाथ� /Appellant) (��यथ� / Respondent) .. �नधा�रती क� ओर से /Assessee by : Shri A.K.Kamilla, AR राज�व क� ओर से /Revenue by : Shri D.K.Pradhan, CITDR सुनवाई क� तार�ख / Date of Hearing : 28/08/2017 घोषणा क� तार�ख/Date of Pronouncement 31/08/2017 आदेश / O R D E R Per Shri Pavan Kumar Gadale, JM: The assessee has filed an appeal against the order of CIT(A)-2, Bhubaneswar, dated 01.02.2016, passed in I.T.Appeal No.0270/2015-16, u/s.143(3) of the Income Tax Act, 1961 for the assessment year 2008- 2009, wherein the assessee has raised the following grounds :- 1. That the order of the learned Commissioner of Income Tax (Appeal) II, Bhubaneswar in sp, far as invoking Section 26 in respect of the assessment is against law and judiciary discipline. 2. That it is a clear fact that 263 order was invoked by the Commissioner of Income Tax on 22/03/2013 which is after the order of the ITAT order. The CIT's order was passed on 22/03/2013 whereas the ITAT order was passed on 25/04/2012. The CIT had revised the order which was set-aside by the learned ITAT. In other words the assessment order which was not existing is being revised by the CIT. It is purely against the concept of judiciary discipline. The judgement cited by the learned CIT (Appeal) in the case of CIT Vrs. Sri Arbuda Mills Ltd. 98 Taxman 457 in respect of 263 is distinguishable since the CIT revised the order which was passed after the orders of the CIT (Appeal). In the present case the order has been

2 ITA No.193/CTK/2016 passed by the Hon'ble ITAT. Similarly the decision given by the learned CIT (Appeal) in respect of CIT Vrs. Jaykumar B. Patil 236 ITR 469(SC) is not also equally applicable. 3. That so far as the disallowance of Rs. 11,21,720/-on account of employees contribution to EPF is a part of 263 order . Assuming for the time being application of 263 order is correct, it has been held in the case of CIT Vrs. Nipsopoly Fabrics Ltd. reported in 350 ITR P-327 that if the payments in respect of EPF has been paid prior to the filing of return U/s.139(1) the amount will be allowed even though it has not been paid within the statutory time. 4. That the learned Commissioner of Income Tax (Appeal) has not given any decision with respect to ground No.5 with regard to disallowance of Rs. 14,64,977/- although the amount has not been debited and claimed as expenditure during the financial year 2007-08 in the Profit & Loss Account. The CIT (Appeal) has not dealt with this at all. 5. That the learned CIT(Appeal) had also not considered the TDS claimed by the appellant although the TDS Certificates were given to him. 6. That the learned CIT(Appeal) invoked the provision of Section 263 although different alternatives were with him such as Section 147 and also Section 154. 2. At the time of hearing the ld. AR of the assessee filed an

adjournment petition seeking adjournment, however, considering facts of

the case, we reject the adjournment petition and appeal is heard on

merits.

Odisha undertaking, engaged in the business of constructions works and

filed the return of income for the assessment year 2008-2009 on

24.10.2008 with total income of Rs.Nil. The return of income was selected

for scrutiny and assessment was completed u/s.143(3) of the Act

assessing total income of Rs.1,38,57,080/-.

the CIT(A). The CIT(A) confirmed the action of AO. Against the order of

3 ITA No.193/CTK/2016 CIT(A), assessee filed an appeal before the Tribunal. The Tribunal in ITA

No.489/CTK/2011 disposed off the appeal of the assessee with a

direction to the AO to verify the provisions/liabilities whether debited to the profit and loss account or not. Subsequently, the CIT u/s.263 of the Act

has passed an order dated 22.3.2013 and observed that the AO has wrongly allowed the claim of expenses and the ld. AR filed submissions

and argued the grounds. However, the CIT was not convinced with the submissions and explanations of assessee and cancelled the assessment

order passed u/s.143(3) of the Act, being erroneous and prejudicial to the

interest of revenue and directed the AO to re-examine in detail the

relevant issues and pass the order. Based on the direction of order

u/s.263 of the Act, the AO completed the assessment u/s.143(3) r.w.s.263

of the Act and assessed the total income of assessee at Rs.1,38,57,080/-

and passed the order u/s.143(3) of the Act dated 4.10.2013. Aggrieved by

the same, the assessee filed an appeal before the CIT(A). The CIT(A)

having considered the grounds and findings of authorities partly allowed

the appeal of the assessee.

before the Tribunal. Before us, ld. AR of the assessee submitted that

revision order 263 of the Act was invoked by the Commissioner of Income

Tax on 22/03/2013 which is after the order of the ITAT. Ld. AR further

submitted that the assessment order was not existing, as the same was set aside by the Tribunal, which is being revised by the CIT and relied on

judicial decisions and further disallowance of Rs. 11,21,720/- on account

4 ITA No.193/CTK/2016 of employees contribution to EPF cannot be sustained as the contribution

was deposited prior to the filing of return of income U/s.139(1) of the Act.

Contra, ld. DR relied on the order of authorities below.

record. In the present case it is not disputed that the EPF contribution was

deposited by the assessee before due date of filing of return of income

u/s.139(1) of the Act. The very same issue has already been decided by

the Tribunal in ITA No.145/CTK/2016 in the case of Jagannath Polymers

Limited, dated 28.8.2017, wherein the Tribunal has held as under :-

We have heard rival submissions, perused the orders of 5. lower authorities and materials available on record. In the instant case, it is not in dispute that the employees' contributions to PF of Rs.3,68,277/- and ESI of Rs.54,146/- were deposited by the assessee before due date of filing the return of income u/s.139(1) of the Act. The Hon'ble Delhi High Court in CIT Vs. AIMIL Limited [2010] 321 ITR 508 (DEL) has held that the employees' contribution towards EPF and ESI etc. deposited after the due date but before the time allowed for filing the return u/s.139(1) will not call for any disallowance u/s.36(l)(va). Therefore, we set aside the orders of lower authorities and delete the disallowance of employees Contribution to PF of Rs.3,68,277/- and ESI of Rs.54,146/- and allow this part of ground of appeal of the assessee.”

Respectfully following the order of the Tribunal quoted above, we set

aside the order of CIT(A) and direct the AO to allow the deduction.

disallowance in respect of VAT and sales tax. Ld. AR submitted that this

issue was not adjudicated by the CIT(A), whereas ld. DR vehemently

argued that it was dealt by the CIT(A). We perused the order of the CIT(A)

and found that the CIT(A) has discussed on this disputed issue and

considered the submissions of the assessee. Since this issue is already

decided by the CIT(A), we find no merit in the grounds of appeal raised by

5 ITA No.193/CTK/2016 the assessee. Accordingly, this ground of assessee is dismissed. In respect of TDS credit, the CIT(A) has directed the AO to verify and allow the claim. Accordingly, this ground of appeal of the assessee is partly allowed. 8. In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on this 31/08/2017. Sd/- Sd/- (N. S. SAINI) (PAVAN KUMAR GADALE) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER कटक Cuttack; �दनांक Dated 31/08/2017 �.कु.�म/PKM, Senior Private Secretary आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. Appellant- Odisha Bridge & Construction Corporation Ltd, Setu Bhawan, Nayapalli, Bhubaneswar ��यथ� / The Respondent- 2. ACIT, Circle-2(2), Bhubaneswar आयकर आयु�त(अपील) / The CIT(A), 3. आयकर आयु�त / CIT 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कटक / DR, ITAT, Cuttack 5. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, 6. स�या�पत ��त //True Copy// (Senior Private Secretary) आयकर अपील�य अ�धकरण, कटक / ITAT, Cuttack