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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
आदेश ORDER �ी अिमत शु�ला,�या.स :- PER AMIT SHUKLA, J. M.: The aforesaid appeal has been filed by the revenue against the impugned order of the CIT(A) -4, Mumbai for the quantum of assessment passed under section 143(3) r.w.s. 147 for the assessment year 2009-10 on the following grounds of appeal:
1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition of Rs.36,87,599/-, made on account of Employee’s Contribution to Provident Fund without appreciating the fact that in view of the decision of Hon’ble ITAT ‘C’ Bench Kolkata in the case of Bengal Chemical and Pharmaceuticals Ltd (11 Taxmann.com 328) (2011), the assessee is not entitled to deduction
2 मेटा कॉपर अँड अँ�लोयस �ल�मटेड M/s Meta Copper & Alloys Ltd 36(1)(va) in respect of Employees Contribution to PF/ESIC if it is paid after due date and specified in Explanation to section 36(1)(va) on the basis of provisions of section 43B, because said section comes into play only when a deduction is otherwise allowable under Act.
2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition of Rs.36,87,599/-, made on account of Employee’s Contribution to Provident Fund by placing reliance on the decision of Supreme Court in the case of M/s Alom Extrusions Ltd without appreciating that the facts of the case are distinguishable from the facts of the instant case”.
Despite service of notice to the assessee, none appeared on behalf of the assessee, accordingly, appeal is being decided on the basis of material on record and argument placed by the Ld. DR.
The sole issue for disallowance made by the AO is that, assessee has made certain payments towards employee’s contribution to PF to the Government account after the due date of payment as per Provident Fund/ESIC Act. The assessee’s claim has been that, all the payments have been made before the due date of filing of return of income under section 139(1) therefore, the same are allowable under section 43B.
The relevant details of payment deposited; due dates under the prescribed Act and the actual date of payments are as under:-
3 मेटा कॉपर अँड अँ�लोयस �ल�मटेड M/s Meta Copper & Alloys Ltd Employee’s Contribution to Provident Fund (Goa): Serial Month Employee’s Due Date Actual Date of No. Contribution Payment Deposited 1 Apr 2008 462,822 15-May-08 17-May-08 2 May 2008 508,562 15-Jun-08 16-Jun-08 3 Jun 2008 481,276 15-Jul-08 16-Jul-08 4 Jul 2008 487,125 15-Aug-08 19-Aug-08 5 Aug 2008 479,447 15-Sept-08 16-Sep-08 6 Dec 2008 470,516 15-Jan-09 17-Jan-09 7 Feb 2008 476,406 15-Mar-09 16-Mar-09 8 Mar 2009 468,312 15-Apr-09 17-Apr-09 Employee’s Contribution to Provident Fund (Mumbai): Serial Month Employee’s Due Date Actual Date of No. Contribution Payment Deposited 1 May 2008 62,855 15-Jun-08 04-Aug-08 2 Jun 2008 61,890 15-Jul-08 04-Aug-08 3 Aug 2008 72,213 15-Sept-08 16-Sep-08 4 Sep 2008 72,213 15-Oct-08 16-Oct-08 Employee’s Contribution to ESIC Fund (Goa): Serial Month Employee’s Due Date Actual Date of No. Contribution Payment Deposited 1 Apr 2008 32,428 21-May-08 23-May-08 2 Jul 2008 30,961 21-Aug-08 22-Aug-08 The due date of filing of return of income was 30th September, 2009 and assessee had filed its return of income on 29.09.2009. Thus, all these payments were much before the due date of filing of return of income.
The Ld. CIT(A) has deleted the said disallowance after observing and holding as under:- “I have considered the facts of the case and submissions of the assessee. The AO has disallowed payment of Employees contribution to PF/ESIC which have been made after the due dates but before filing of return, whereas now the issue has finally been settled by Hon’ble Supreme Court in the case of Alom Extrusions (supra) and it has been held that any such contribution deposited before filing of return is to be allowed. As per the copy of the relevant detail filed by the assessee, the entire amount has been paid before filing of return of 4 मेटा कॉपर अँड अँ�लोयस �ल�मटेड M/s Meta Copper & Alloys Ltd return. Therefore, AO is directed to verify the same and allow the assessee all those amounts relating to PF/ESIC which have been paid before filing of return. If necessary, the AO can ask the assessee to filed the said details again. In the result, the ground of appeal is allowed”.
6. We find that, Hon’ble Bombay High Court in the case of CIT VS Ghatge Patil Transporters Ltd., reported in [2014] 368 ITR 0749, after following the decision of the Hon’ble Apex Court in the case of Alom Extrusion (319 ITR 306) held that if the employee’s contribution to the PF or ESIC fund has been made before the due date of filing of return under section 139(1), then same should be allowed as deduction under section 43B. Accordingly, following the ratio laid down by the Hon’ble Bombay High Court, we affirm the order of the CIT(A) and dismiss the grounds raised by the department.
7. In the result, appeal of the revenue stands dismissed. Order pronounced in the open court on 3rd May, 2016 Sd/- Sd/- (बी आर भा�करन) (अिमत शु�ला) लेखा सद�य �याईक सद�य (B R BASKARAN) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Date: 3rd May, 2016 ��त/Copy to:- 1) अपीलाथ� /The Appellant. 2) ��यथ� /The Respondent. 3) The CIT(A) -4, Mumbai. 4) The Commissioner of Income Tax -3, Mumbai. 5) �ितिनिध िवभागीय “बी“, अिधकरण अपीलीय आयकर, मुंबई/ The D.R. “B” Bench, Mumbai.
5 मेटा कॉपर अँड अँ�लोयस �ल�मटेड M/s Meta Copper & Alloys Ltd