ITO 8(3)(3), MUMBAI vs. TRICOM INDIA LTD, MUMBAI

आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

(A.Y. 2005-06) ITO Vs. M/s. Tricom India Ltd. 1) "On the facts and in the circumstances of the case and in law, the CIT(A) erred in deleting the disallowance made u/s 2(24(x) r.w.s. 36(1 )(va) of the Income-tax Act, 1961 towards Employee's Contribution to PF of Rs.25,42,782/- & ESIC of Rs.5,69,979/- made beyond the due date as prescribed in the relevant legislation". 2) "On the facts and in the circumstances of the case and in law, the CIT(A) erred in not appreciating that Employee's contribution collected by the employer is deemed to be his income u/s 2(24)(x) and is allowable as a deduction u/s 36(1 )(va) only if it is paid to the relevant fund by the due date as prescribed in the relevant legislation and that the section 43B covers only the Employer's Contribution to the PF & ESIC and Employee's Contribution in this regard are outside its ambit." 3. "On the facts and in the circumstances of the case and in law, the CIT(A) erred in not appreciating that in the case of Alom Extrusions Ltd., the issue of allowability of Employee's Contribution to PF & ESIC made beyond due dates u/s 43B vis-a-vis deduction u/s 2(24)(x) r.w.s. 36(1)(va) of the income tax Act, 1961 was not adjudicated by the Apex Court." 4. "On the facts and in the circumstances of the case and in law, the CIT(A) erred in ignoring the ratio laid down by the judicial pronouncements in DCIT vs Bengal Chemicals & Pharmaceuticals Ltd.(2011) 10 Taxmann.com 26 (Kol.) and JCIT Vs ITC Ltd(2008) (112 ITD 57 (Kol.) (SB), wherein after differentiating the judgment in the case of Alom Extrusions Ltd., it was held that deductibility of Employee's Contribution payments to PF & ESIC is only governed by the provisions of section 36(1 )(va) and that the provisions of section 43B do not apply to the impugned payments".

5. The appellant prays that the order of CIT(A) on the above ground be set aside and that of the A.O. be restored.”

(A.Y. 2005-06) ITO Vs. M/s. Tricom India Ltd. 3. Aggrieved by the order of the AO, assessee filed the appeal before CIT(A) and the CIT(A) after considering the case of the assessee allowed the appeal vide order dated 18.04.2013.

5.1 We have heard the counsels for both the parties on this ground in detail and we have also perused the material placed on record as well as the orders passed by the revenue authorities. Before we decide the merits of the case, detailed order passed by CIT(A) is observed and the operative para is reproduced below:

“1.3. I have considered ·the submissions of the appellant, order of the A.0 and facts of the case carefully, it is noticed that the payment towards contribution of PF and ESIC has been made by the appellant as under:- xxxxxx The due date for filing of return in this case was 31.10.2005. The assessee has filed the return on 31.10.2005 i.e. within the prescribed time. From the perusal of the above statements, it is clear that the contribution to PF and ESIC payments have been deposited in the Government account before filing return of income. The facts of the case are squarely covered by the decision of the hon'ble Supreme Court in the case of CIT Vs. Alom Extrusions Ltd. 319 ITR 306

(A.Y. 2005-06) ITO Vs. M/s. Tricom India Ltd. where it is held that payments made before filing of the return of income and within the grace period is allowable deduction. Keeping in view the facts and circumstances, the addition made by the A.O. is not sustainable, hence deleted. The ground of appeal is allowed.”

5.2 After taking into consideration the arguments raised by respective parties and from the perusal of afore mentioned order we have seen that the CIT(A) has concluded that contribution of PF and ESIC payments have been deposited in the Government Account before filing return of income and while relying upon the decision of Hon’ble Supreme Court in the case of CIT Vs. Alom Extursions Ltd. 319 ITR 306. The CIT(A) has deleted the addition made by AO.

8.2. After analyzing the afore mentioned order we found that the CIT(A) has dealt with all the issues and has passed judicious and well reasoned order and no new circumstances have been brought before us in order to controvert or rebut the findings recorded by the CIT(A). Therefore, we see no reason to deviate or interfere into the findings recorded by the CIT(A) and hence, we reject these grounds raised by the revenue and uphold the order of the CIT(A).

(A.Y. 2005-06) ITO Vs. M/s. Tricom India Ltd.

Order pronounced in the open court on 5th August, 2016 Sd/- Sd/- (Rajendra) (Sandeep Gosain) लेखा सद�य / Accountant Member �या�यक सद�य / Judicial Member मुंबई Mumbai; �दनांक Dated : 05.08.2016 Ps. Ashwini आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. आयकर आयु�त(अपील) / The CIT(A) 4. आयकर आयु�त / CIT - concerned 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard File आदेशानुसार/ BY ORDER,