Income Tax Appellate Tribunal - Ahmedabad
Montecarlo Limited ( Formerly Known As ... vs The Dy.Cit, Central Circle-1(1),, ... on 1 February, 2018
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ ''सी'' अहमदाबाद।
IN THE INCOME TAX APPELLATE TRIBUNAL
"C" BENCH, AHMEDABAD
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER
आयकर अपील सं./ ITA No. 3649/Ahd/2015
नधारण वष/Assessment Year: 2012-13
Montecarlo Limited Vs. The ACIT,
(formerly known as Motecarlo Central Circle-1(1),
Construction Ltd.) Ahmedabad
602, 6th Floor, Ship Building,
CG Road, Navrangpura,
Ahmedabad-380 009
PAN : AAACM 7958 A
अपीलाथ / (Appellant) यथ / (Respondent)
Assessee by : None
Revenue by : Shri Rajdeep Singh, Sr DR
सु न वा ई क! ता र ख/ Date
of Hearing : 09/01/2018
घोषणा क तार ख / Date of Pronouncement: 01/02/2018
आदे श/O R D E R
PER RAJPAL YADAV, JUDICIAL MEMBER:
The assessee is in appeal before the Tribunal against the order of learned CIT(A)-11, Ahmedabad dated 03.09.2015 passed for Assessment Year 2012-13.
2. The grounds raised by the assessee read as under:-
"1. The Learned CIT(A) erred in law and on the facts of the case in confirming action of the AO in disallowing an amount of Rs.6,58,104/- by invoking the provisions of section 36(1)(va) r.w.s. 2(24)(x) of the Act with respect to the employee's contribution fund to PF which were paid before the due date of furnishing of return of income u/s 139(1) of the Act.
2. The order passed by the learned CIT(A) is against law and facts of the appellant's case in confirming impugned made by the AO in utter ITA No. 3649/Ahd/2015 Montecarlo Ltd vs. DCIT For AY: 2012-13 2 disregard to the ratio of the SC in case of Vinay Cements Ltd. 213 CTR 268(SC) and Alom Extrusions Ltd. where in the apex court has held that employees contribution to PF/ESIC etc., paid belatedly but before the due date for filing of return income u/s 139(1) of the Act for the relevant AY is allowable u/s 43B of the Act.
It is therefore prayed that the impugned addition made by the AO and confirmed by the CIT(A) may please be deleted.
3. The ld. CIT(A) has erred in law and on facts in confirming the action of ld. AO in charging interest u/s 234 B/C/D of the Act.
4. The ld. CIT(A) has erred in law and on facts in confirming the action of ld. AO in initiating penalty proceedings u/s 271(1)(c) of the Act."
3. At the time of hearing before us, none appeared on behalf of the assessee; however, an adjournment application dated 08.01.2018 was filed. The reason for seeking adjournment was not found convincing and therefore, the adjournment application is rejected, and, we thus proceed to dispose of the appeal on the basis of material available on record and after considering the submissions of the Departmental Representative.
4. We find that the issue in appeal has been decided against the assessee by the decision of Hon'ble Gujarat High Court in the case of CIT vs. Gujarat State Road Transport Corporation, reported in (2014) 366 ITR 170 (Guj), wherein the Hon'ble High Court held as under:-
"Held :
Considering section 36(1)(va) of Income Tax Act as it stands, with respect to any sum received by assessee from any of his employees to which provisions of clause (x) of sub-section (24) of section 2 applies, assessee shall not be entitled to deduction of such amount in computing income referred to in section 28 if such sum was not credited by assessee to employees' account in relevant fund or funds on or before due date as per explanation to section 36(1)(va) of Act. Merely because Second Proviso to Section 43B of the Act in which there was a reference to due date as ITA No. 3649/Ahd/2015 Montecarlo Ltd vs. DCIT For AY: 2012-13 3 defined in explanation below clause (va) of sub-section (1) of section 36, it cannot be held that even section 36(1)(va) was amended and/or even explanation below clause (va) of sub-section (1) of section 36 was also deleted. It can be said that there was a reference to explanation below clause (va) of sub-section (1) of section 36 in second proviso of section 43B (which has been deleted by Finance Act, 2003), only for purpose of defining due date as per explanation below clause (va) of sub-section (1) of section 36. Therefore, by deleting Second Proviso to section 43B by Finance Act, 2003, it cannot be said that Section 36(1) (va) is amended and/or explanation below clause (va) of sub- section (1) of section 36 was deleted, which is with respect to employees' contribution. (Para 7.11) .......
Considering section 36(1)(va) of Income Tax Act, 1961 read with sub- clause (x) of clause 24 of section 2, it was held that with respect to sum received by assessee from any of his employees to which provisions of sub- clause (x) of clause (24) of section (2) applies, assessee shall be entitled to deduction in computing income referred to in section 28 with respect to such sum credited by assessee to employees' account in relevant fund or funds on or before "due date" mentioned in explanation to section 36(1)(va). Consequently, it was held that learned tribunal had erred in deleting respective disallowances being employees' contribution to PF Account / ESI Account made by AO as, as such, such sums were not credited by respective assessee to employees' accounts in relevant fund or funds (in present case Provident Fund and/or ESI Fund on or before due date as per explanation to section 36(1)(va) of Act i.e. date by which concerned assessee was required as an employer to credit employees' contribution to employees' account in Provident Fund under Provident Fund Act and/or in the ESI Fund under ESI Act. Consequently, all these appeals are allowed and impugned judgement and orders passed by tribunal in deleting disallowances made by AO was hereby quashed and set aside and disallowances of respective sums with respect to Provident Fund / ESI Fund made by AO was hereby restored. Questions raised in present appeal are answered in favour of revenue. With this, all these appeals are allowed. Para 8)"
5. Respectfully following the judgment of the Hon'ble Gujarat High Court in the case of Gujarat State Road Transport Corporation (supra), we uphold the order of the learned CIT(A) in confirming the ITA No. 3649/Ahd/2015 Montecarlo Ltd vs. DCIT For AY: 2012-13 4 disallowance of Rs.6,58,104/- being the amount of Employee's contribution to Provident Fund & ESI.
6. In the result, the appeal of the assessee is dismissed.
Order pronounced in the Court on 1st February, 2018 at Ahmedabad.
Sd/- Sd/-
(AMARJIT SINGH) (RAJPAL YADAV)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 01/02/2018
Biju T., Sr.PS
आदे श क! &त'ल(प अ)े(षत/Copy
of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संब!ं धत आयकर आय#
ु त / Concerned CIT
4. आयकर आय#
ु त(अपील) / The CIT(A)
5. &वभागीय त न!ध, आयकर अपील य अ!धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
आदे शानुसार / BY ORDER,
TRUE COPY
उप/सहायक पंजीकार (Dy./Asstt.Registrar)
आयकर अपील य अ धकरण, अहमदाबाद/ ITAT, Ahmedabad