Income Tax Appellate Tribunal - Delhi
Manisha Tyagi, Delhi vs Jurisdictional Assessing Officer, ... on 26 April, 2022
IN THE INCOME TAX APPELLATE TRIBUNAL,
DELHI BENCH 'G', NEW DELHI
BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND
SH. KUL BHARAT, JUDICIAL MEMBER
Sr. ITA No(s) Asst. Appeal(s) by Assessee By Revenue By
Nos Year(s) Appellant vs.
Respondent
Appellant Respondent
1. 747/Del/2021 2018-19 GI Staffing Services ACIT, Shri Amit Shri Umesh
Pvt.Ltd., F-103, Ashish CPC, Arora, Adv. Takyar,
Complex, Mayur Bengaluru Sr. DR
Vihar, Phase-1,
New Delhi - 110091
PAN : AADCG3694A
2. 1006/Del/2021 2018-19 SS4 Safenet, CPC ITD, Shri Saurab --do--
B-5/158, Safdarjung Bengaluru Rohatagi,
Enclave, South West Adv.
Delhi, Delhi-110029
PAN-ADIFS8014M
3. 1387/Del/2021 2018-19 Baba Housekeeping & CIT(A), Shri Saurbh --do--
Facilities Pvt.Ltd., NFAC, Delhi Kumar, CA
1st Floor, Office No.-3,
Plot No.5, LSC,
Neelkanth Chamber-1,
Saini Enclave,
Delhi-110092
PAN-AACCB9087H
4. 1389/Del/2021 2019-20 --do-- --do-- --do-- --do--
5. 1390/Del/2021 2018-19 Ultra Wiring DCIT, CPC Shri Girish --do--
Connectivity System Bengaluru Gupta, CA
Ltd.,
C/o-Sanmarks &
Associates,
B-504, 1st Floor,
Nehru Ground, NIT,
Faridabad
PAN-AAACU7563K
6. 1394/Del/2021 2018-19 Sawhney Global CIT(A), Shri Anuj --do--
Creations, NFAC, Maheshwari,
B-144, Okhla New Delhi Adv.
Industrial Area,
Phase-I,
New Delhi-110020
PAN : ABGFS0873G
7. 1402/Del/2021 2019-20 Kepler Canon ITD, CPC Shri Samir --do--
International Pvt.Ltd., Bengaluru Mahajan, CA
C/o-Surinder Mahajan
& Associates, A-134,
Defence Colony,
New Delhi- 110024
PAN-AAFCK1662C
2
8. 1404/Del/2021 2019-20 Rajnish Gandhi, ADIT, CPC Shri Kapil --do--
D-I/16, Vasant Vihar, Bengaluru Goel, Adv.
New Delhi-110015
PAN : AALPG4909R
9. 1405/Del/2021 2019-20 Jagrattan Daan Singh CIT(A), NFAC -None- --do--
& Company, Delhi
C-71, Mayapuri
Industrial Area,
Mayapuri, Phase-II,
New Delhi-110064
PAN : AAFFJ6097H
10. 1406/Del/2021 2019-20 Sonia Chawla, ITO Shri Girish --do--
5R-8, Shop No.212, Faridabad Gupta, CA
2nd Floor, Opp. SBI
Main Branch, N.I.T.,
Faridabad,
Haryana - 122001
PAN : AFVPC4918F
11. 1408/Del/2021 2018-19 THYSSENKRUPP ITO, Shri Sankalp --do--
Airport Services SL, Circle Int. Malik, Adv. &
429, Functional Taxation- Shri Sanjay
Industrial Estate, 1(1)(1), Malik, Adv.
Parparganj, Delhi
New Delhi-110092.
PAN : AAFCT4860R
12. 1474/Del/2021 2019-20 Pushpa Sharma, ITO -None- --do--
H.No.1178, Sector-8, Ward-2(1)
Faridabad, Faridabad
Haryana-121004
PAN : CAQPS5194F
13. 1539/Del/2021 2018-19 Sophisticated DCIT, CPC Shri KVSR --do--
Industrial Materials Krishana, CA
Analytic Labs Pvt.Ltd.,
A-3/7, Mayapuri
Industrial Area,
Phase-II,
New Delhi-110064
PAN : AAACS1068D
14. 1541/Del/2021 2019-20 Geo Connect Ltd., ACIT, Shri Gourav --do--
110, Indra Prakash CPC Jain, Adv. &
Building, 21, Bengaluru Shri Sanket
Barakhamba Road, Gupta, Adv.
New Delhi-110001.
PAN : AAECS2401C
15. 1547/Del/2021 2019-20 Cold Forge, ADIT, CPC, Shri --do--
Plot No.181, Sector-24, Bangalore Mahender
Faridabad-121005. Gupta, CA
PAN : AADFC9058R
16. 1565/Del/2021 2018-19 Supreme Securities DCIT, -None- --do--
Ltd., 3rd Floor, RD CPC,
Chambers, 16/11, Bengalore
Arya Samaj Road,
Karol Bagh,
New Delhi-110088.
PAN : AAACS2597R
17. 1566/Del/2021 2018-19 Jonny, ITO, Shri Ramit --do--
A-284, Sainik VIhar, Ward-67(4), Kakar, Adv.
3
Meerut, Delhi
Uttar Pradesh-250001.
PAN : AYQPJ0515K
18. 1609/Del/2021 2019-20 Manage Air Products ADIT, CPC, -None- --do--
India Pvt.Ltd., Bangalore
13/1090, Hardhyan
Singh Road, New
Delhi-110005.
PAN-AAACM3546Q
19. 1618/Del/2021 2018-19 Richa Global Exports ADIT, CPC, Shri KVSR --do--
Pvt.Ltd., Bangalore Krishana,
A-41, Phase-I, Adv.
Mayapuri Industrial
Area,
New Delhi - 110064.
PAN : AADCR0255L
20. 1632/Del/2021 2019-20 JAS Forwarding ADIT, CPC, Shri Sanat --do--
Worldwide Pvt.Ltd., Bangalore Kapoor, Adv.
Global Gateway Tower & Shri Tarun
A, 4th Floor, MG Road, Chanana,
Near Guru Adv.
Dronacharya Metro St.
Gurugram, Haryana-
122002.
PAN-AABCJ5564A
21. 1657/Del/2021 2019-20 BT Data & Surveying ITO -None- --do--
Services India Pvt.Ltd., Circle-4(2),
Level-2, Elegance Delhi
Tower, Jasola District
Centre, Old Mathura
Road, New Delhi-
110024.
PAN : AAFCB7229Q
22. 1697/Del/2021 2019-20 Finesco International, ACIT-2, --do-- --do--
Prabhat Market, Old Moradabad
Rampur road,
Moradabad,
Uttar Pradesh-244001.
PAN-AAAFF4913B
23. 1762/Del/2021 2019-20 Hotel Excelsior Ltd., DCIT, Shri Anubhav --do--
10th Floor, Eros CC-1, Delhi Jaggi, Adv.
Corporate Tower,
Nehru Place,
New Delhi-110019.
PAN : AABCH1744C
24. 1826/Del/2021 2018-19 TFS Corporate DCIT, Shri Rakesh --do--
Solutions Ltd., Ward-25(2), Kumar
23/26, 2nd Floor, East New Delhi Khiwani, CA
Patel Nagar,
New Delhi-110008.
PAN : AACCI7069B
25. 1889/Del/2021 2019-20 Mahipal Singh, CIT(A), NFAC Shri Rajesh --do--
1489, Housing Board Delhi Khandelwal,
Colony, Sector-62, Adv.
Faridabad,
Haryana-121004.
PAN : ASJPM9607L
4
26. 106/Del/2022 2019-20 Green Land Telecom ACIT, Shri Sumit --do--
Services Pvt.Ltd., CPC, Lalchandani,
K-701, Ambience Bangaluru Adv. & Shri
Island, Gurgaon, Abhinav
Haryana-122001. Gaur, Adv.
PAN-AAGCG3205J
27. 109/Del/2022 2019-20 VVDN Technologies DCIT, CPC, Shri Lalit --do--
Pvt.Ltd., 12/10, Bangalore Mohan, CA
East Patel Nagar,
New Delhi - 110008
PAN : AABCE7582R
28. 488/Del/2022 2019-20 Deepak Behl, ACIT, Shri Sanjeev --do--
IA-9C, Phase-I, Ashok Circle - 34(1) Jain, CA
Vihar, Delhi-110052. Delhi
PAN : AEXPB7448C
29. 555/Del/2022 2019-20 Manisha Tyagi, JAO, Shri Hemant --do--
36, Sector-9, DDA Ward - 12(4), Jain, Adv.
Pocket-2, Dwarka, New Delhi
New Delhi-110077
PAN : AJQPT1233P
30. 580/Del/2022 2019-20 Global Cargo ACIT-2, -None- --do--
Forwarders, Uttar
142-144, Super Bazar, Pradesh
Station Road,
Moradabad, Uttar
Pradesh-244001.
PAN-AACFG6868N
31. 583/Del/2022 2019-20 Smt Babita, AO, -None- --do--
331, Singla Fabricator, Ward-4,
Urban Estate, Karnal
Sector-4, Karnal,
Haryana-132001.
PAN : AFXPB5628K
32. 604/Del/2022 2018-19 Yogvir Singh, CPC, -None- --do--
R-22, 310A, Khaneja Cirlce-62(1),
Complex, Shakarpur, Delhi
New Delhi-110092.
PAN-AKZPS1283J
Date of hearing: 26.04.2022
Date of Pronouncement: 26.04.2022
ORDER
PER BENCH :
The present appeals are filed by the above mentioned assessees feeling aggrieved by the orders passed by appellate authority for various assessment years mentioned hereinabove.5
2. Since the issue in all the appeals is common and is related to disallowance of employee's contribution of PF/ESI on account of delay in deposits as per the respective Acts. Therefore, we clubbed all of them together for the sake of brevity and convenience and disposing the same by way of this consolidated order. However, we are taking ITA No.747/Del/2021 [Assessment Year -2018-19] as a lead case wherein the assessee has raised the following grounds:
1. "That the CIT(A) has erred on facts and in law in confirming addition of Rs.1,31,24,654 on account of delay in payment of employee's contribution to provident fund as per provision of section 36(l)(va) read with Section 2(24)(x) of the Act.
1.1 The Ld. CIT(A) has erred in law in relying on the amendment made by the Finance Act, 2021.
1.2 The Ld. CIT(A) has erred in law in not following the decision of Hon'ble High Court of Delhi in the case of CIT vs. AIMIL Ltd. (2010) 321 ITR 508 read with law laid down by Hon'ble Apex Court in the case of Vatika Township Private Limited 367 ITR 466.
1.3 Without prejudice to above, the Ld. CIT(A) has erred in law in not considering the submission of the appellant wherein it has been stated that the payment was made within the due date (i.e. on 14-08-2017) however due to system glitches the PF 6 authorities could able to generate challan at later date (i.e. on 16-08-2017).
The Appellant craves leave to add to or alter, by deletion, substitution or otherwise, any or all of the foregoing grounds of appeal at or before the hearing, and to submit such statements, documents and papers as may be considered necessary either at or before the appeal hearing."
3. Similar grounds with different amounts and assessment years have been raised in other appeals but however, the sum & substance and the issues involved in all the appeals are identical.
4. Before us, at the outset, Learned AR submitted that the sole grievance of the assessee is confirming the additions on account of delay in deposit of employee's contribution towards provident fund and ESI fund.
5. Before us, Learned AR submitted that additions have been made in the intimation issued by CPC, Bangalore u/s 36(1)(va) of the Income Tax Act, 1961 ("the Act") for the reason that the contribution received towards PF/ESIC by the assessee from its employees was not deposited before the due date. He submitted that though there has been delay in deposit of PF/ESIC Contributions but all the contributions received by the assessee from its employees, have been deposited with the appropriate 7 authorities before the filing of return of income by the assessee. He therefore submitted that since the amounts have been deposited before the filing of return of income, no disallowance is called for and for aforesaid proposition, he relied on the decision of Azamgarh Steel & Power vs. CPC in ITA No.1626/Del/2020 dated 31.05.2021 and CIT vs. AIMIL Ltd. [2010] 188 Taxman 265 (Delhi) and various other decisions.
6. Learned Sr. DR on the other hand supported the order of lower authorities and also placed reliance on the decision of Delhi Tribunal in the case of Vedvan Consultants Pvt. Ltd. vs DCIT in ITA No.1312/Del/2020 order dated 26.08.2021. He also submitted that the amendment brought out by Finance Act 2021 would be applicable to the present case as by the amendment, it has been clarified that provisions of Section 43B of the Act shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub clause (x) of Clause (24) of Section 2 applies.
7. We have heard the rival submissions and perused the material available on record. The issue is no more res-integra. The issue has already been settled in favour of the assessee by various 8 judicial pronouncements by the Tribunal. The Hon'ble Jurisdictional High Court of Delhi in the case of PCIT vs Pro Interactive Service (India) Pvt.Ltd. in ITA No.983/2018 [Del.] order dated 10.09.2018 held as under:-
"In view of the judgement of the Division Bench of Delhi High Court in Commissioner of Income Tax versus AIMIL Limited, (2010) 321 ITR 508 (Del.) the issue is covered against the Revenue and, therefore, no substantial question of law arises for consideration in this appeal.
The legislative intent was/is to ensure that the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee's Provident Fund (EPD) and Employee's State Insurance Scheme (ESI) as deemed income of the employer under section 2(23)(x) of the Act."
8. As far as reliance by Ld. Sr. DR on the amendment brought out by Finance Act, 2021 is concerned, "notes on clauses" to the Finance Bill 2021 clearly states that the amendment will take effect from 01st April 2021 and will apply in relation to the assessment year 2021-22 and subsequent assessment year. In such a situation, we are of the view that the amendment brought out by 9 Finance Act, 2021 does not apply to the assessment year under consideration.
9. Before us, the Revenue has not placed any material on record to demonstrate that the aforesaid order cited hereinabove has been overruled/stayed/set aside by higher judicial forum. In view of the aforesaid facts, we are of the view that the AO was not justified in denying the deduction claimed by the assessee on account of late deposit of PF/ESI/EPF, albeit before filing the return of income. Admittedly, in all the above-stated matters, the Revenue had not contended that the assessee has deposited the contribution after the filing of the return of income. In view of the above and respectfully following the decision of the Hon'ble Jurisdictional High Court of Delhi cited hereinabove, we allow the appeal filed by the assessee.
10. In the result, the appeal of the assessee is allowed.
11. In the final result, all appeals of the assessee are allowed.
Order pronounced in the open court on 26.04.2022.
Sd/- /- SS S Sd/- /-
(KUL BHARAT) (ANIL CHATURVEDI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date:-26.04.2022/*Amit Kumar*
10
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI