Income Tax Appellate Tribunal - Amritsar
Deputy Commissoner Of Income Tax ... vs M/S Niagrara Metals India Lmited, ... on 10 May, 2022
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH, AMRITSAR.
BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER
AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER
I.T.A. No. 192/Asr/2021
Assessment Year: 2019-20
DCIT, Central Circle, Vs. M/s Niagara Metals India
Jammu Ltd. 854 Industrial Area-
A, R.K. Road, Ludhiana.
[PAN: AACCN0200A]
(Appellant) (Respendent)
Appellant by Sh. S.M.Surendra Nath
Sr. D. R.
Respondent by None
Date of Hearing 02.03.2022
Date of Pronouncement 10.05.2022
ORDER
Per: Anikesh Banerjee, JM:
The instant appeal was filed by the revenue against the order of the Ld. Commissioner of Income Tax (Appeal)-5, Ludhiana [in brevity the CIT(A)] bearing no. 10147/CIT (A) -5/Ldh/2020-21 date of order 25.10.2021 passed u/s 250(6) of the Income Tax Act, 1961 (in brevity the Act) which is originated from I.T.A. No. 192/Asr/2021 2 the intimation u/s 143(1)(a) of the Act of CPC Bangaluru dated 20.03.2020 for A.Y. 2019-20.
2. Brief fact is that the CPC Bangaluru disallowed the payment of PF and ESI u/s 36(1)(va) read with section 43B of the Act amount of Rs.9,10,183/- in it's intimation u/s 143(1)(a) of the Act for Assessment year 2019-20.
3. The assessee had filed an appeal before the ld. CIT(A), and the ld. CIT(A) appeal by a speaking order allowed the assessee's appeal and deleted the addition of the CPC.
4. Aggrieved revenue filed an appeal before us.
5. The observation of the ld. CIT(A) in relation to the above mentioned order is as follows:
"2. During the course of appellate proceedings, the AR submitted arguments as under:-
Sub.:-Notice Under Section 250 of Income Tax Act, 1961-Appeal No.: CIT(A), Ludhiana- 1/10147/2020-21-Assessment year 2019-2020- PAN: AACCN0200A Kindly refer to above notice dated 12/10/2021 DIN: ITBA/APL/F/APL 1/2021- 22/1036325057(1) The Return of Income for above Assessment Year was filed declaring a total income of Rs. 9051509. The Return of income was processed vide intimation dated 07/07/2020 Under Section 143(1) of Income Tax Act, 1961 and total income was computed at Rs 9961692. Disallowance/additions of Rs. 910183 was made Under Section 36(l)(va) of Income Tax Act, 1961.
In regard to ground of Appeals and additions/disallowances we have to submit as under: A) Employees Provident Fund Disallowance of Rs. 843170/-
Month Employee Amount Due Date Date of Payment
Paid
Provident
Fund
April, 2018 67266 67266 15/05/2018 16/05/2018
May, 2018 65540 65540 16/06/2018 04/07/2018
June, 2018 64962 64962 16/07/2018 24/07/2018
July, 2018 81614 81614 16/08/2018 19/09/2018
August, 2018 87647 87647 15/09/2018 19/09/2018
September, 2018 80108 80108 15/10/2018 21/12/2018
I.T.A. No. 192/Asr/2021 3
October, 2018 73099 73099 15/11/2018 21/12/2018
November, 2018 66402 66402 15/12/2018 21/12/2018
December, 2018 64824 64824 15/01/2019 22/01/2019
January, 2019 65028 65028 15/02/2019 22/02/2019
February, 2019 63504 63504 15/03/2019 25/03/2019
March, 2019 63176 63176 15/04/2019 07/05/2019
Total Rs. A):- 843170 843170
B) Employees State Insurance Disallowance of Rs. 65318/-
Month ESI received Amount Due Date Date of
Paid Payment
from
Employee
April, 2018 5334 5334 15/05/2018 16/05/2018
May, 2018 5047 5047 16/06/2018 04/07/2018
June, 2018 5131 5131 16/07/2018 24/07/2018
July, 2018 6717 6717 16/08/2018 19/09/2018
August, 2018 7692 7692 15/09/2018 19/09/2018
September, 2018 8279 8279 15/10/2018 21/12/2018
October, 2018 5437 5437 15/11/2018 21/12/2018
November, 2018 4733 4733 15/12/2018 21/12/2018
December, 2018 4604 4604 15/01/2019 22/01/2019
January,2019 4249 4249 15/02/2019 22/02/2019
February, 2019 3917 3917 15/03/2019 25/03/2019
March, 2019 4178 4178 15/04/2019 07/05/2019
Total Rs.B):- 65318 65318
C) Labour Welfare Fund Disallowance of Rs. 1695/-
Month Labour Welfare Fund Amount Due Date Date of Payment Paid received from Employee October to March 1695 1695 15/04/2019 30/06/2019 2019 Total Rs. C):- 1695 1695 Total:- A+B+C= 910183 It would be observed from above that amounts have been deposited within the Financial year itself and within due date for filing the return of income and as such are fully allowable Copies of receipts of deposit of Provident Fund and ESI are enclosed. It is also submitted that if the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made, Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. In so far as the Income- tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principal laid down by the Supreme Court in Vinay Cement[2009] 313 ITR (St.) 1 (SC)." We would also like to draw your kind attention to the ratios laid down by the Jurisdictional Punjab and Haryana High Court in the following cases:
1. C.I.T. V. HEMLA EMBROIDERY MILLS (P) LTD 366 ITR Page 167.
2. C.I.T. V. LAKSHMI INDIA LTD., 188 TAXMAN, 132 I.T.A. No. 192/Asr/2021 4
3. C.I.T. V. MARK AUTO INDUSTIRES LTD. 358 ITR, 43
4. C.I.T. FARIDABAD VS . KAMAL FAMILY TRUST, 219 TAXMAN 81 AND
5. RAJ AGRO INDUSTRIES 334 ITR 122
6. DCIT VS. MALWA COTTON SPINNING MILLS LTD. ITAT, CHANDIGARH "B" BENCH ITA NO. 431 TO 433/CHD/2017 dated 07/09/2018 (The decision of the aforesaid orders of the Punjab & Haryana High Court were followed) In addition to aforesaid judgments, there are number of prominent judicial pronouncements as per which employee's contribution to Provident Fund and ESI and Labour Welfare Fund is entitled to deduction if the same was paid by the due date for filing the return as given in 139(1) of the Income Tax Act, 1961. Some of the prominent judicial pronouncements are given here under:
CITvs. PM ELECTRONICS LIMITED [2009] 313 ITR 161 (DELHI)
1. CITVs. SABARI ENTERPRISES [2008] (KARNATAKA)
2. CIT Vs. A&Z INFORMATION TECHNOLOGY PVT. LTD. [2009] (KARNATAKA)
3. CIT Vs. NIPSO POLYFEBRICS LIMITED [2013] (HIMACHAL)
4. CIT Vs. KACHNA SUGAR CO. LTD. [2013] (UTTARAKHAND)
5. CIT Vs. AIMIL LIMITED [2010] 188 Taxman 265 (Delhi) Further it is submitted that our appeal for the Assessment Year 2018-19 was allowed and disallowance Under Section 36(i)(va) was deleted by learned CIT(A)- LDH vide his order dated 05-11-2019 in appeal number 227/IT/CIT(A)- I/LDH/2019-20. Copy of the said order is enclosed and since the facts of the case are similar as in the assessment year 2918-19, the disallowance Under Section 36(l)(va) is uncalled for.
Under the circumstances and on the facts of the case the disallowance of Rs. 910183 Under Section 36(i) (va) is arbitrary and illegal 8s deserves to be deleted.
2. Disallowance Under Section 143(1) of Income Tax Act, 1961 It is submitted that disallowance Under Section 36(i)(va) in respect of late payment is a debatable issue which is not the mandate of the provisions of section 143(1) of the Income Tax Act, 1961. The disallowance of Rs. 910183/-- is arbitrary and illegal and may kindly be deleted."
3. In the light of the above submission, the various ground of appeal is adjudicated as below:
3.1 Ground of Appeal No. 1 r e l a t e t o d i s a l l o w a n c e o f R s . 9 , 1 0 , 1 8 3 / - o n a c c o u n t o f e m p l o y e e ' s s h a r e o f ESI/PF (Rs. 8,43,170/- EPF, Rs. 65,318 ESI and LWF Rs. 1,695) which have been deposited within the Financial Year itself and before the due date of filing the return u/s 139(1) of the Income Tax Act, 1961. The AR submitted that the appellant has made all these contributions before the filing of Income Tax Return and relied upon various case laws including the judgment of High Court of Punjab and Haryana in the case of Commissioner of Income Tax vs. M/s. Hernia Embroidery Mills (P) Ltd., reported as 366 ITR 167. The arguments of the AR are found acceptable since the payments were made before the due date of filing the return u/s 139(1) and the present case falls in the jurisdiction of Hon'ble Punjab & Haryana High Court, the judicial discipline demands that the view taken by the jurisdictional High Court has to prevail in the absence of any contrary decision of the Apex Court.
The jurisdictional High Court has equated the Employers' and Employees' contribution and has treated them at par for applicability of the amended provision of section 43B, allowing deduction if the amount in question stand paid on or before the due date under Section 139(1) in respect of the previous year in which the liability to pay such su m was incurred and evidence of such payment is furnished in the return of income. It would be expedient to extract herein below the relevant p a r a g r a p h o f t h e d e c i s i o n o f t h e H o n ' b l e H i g h C o u r t o f P u n j a b & H a r y a n a i n t h e c a s e o f CIT, Faridabad vs. Hemla Embroidery Mills (P.) Ltd.:
I.T.A. No. 192/Asr/2021 5
"5. Learned counsel for the appellant could not dispute that the issue raised here in finally stand settled by the Apex Court judgment in Commissioner of Income Tax v. Alom Extrusions Ltd.,[2009] 319 ITR 306 (SC) and this court in Income tax Appeal No. 663 of 2005 (The Commissioner of Income Tax, Patiala Vs. M/s Agro Industries Ltd., Sangrur), decided on 30.11.2010 wherein it has been Second Proviso to section 43B of the Act omitted by the Finance Act, 003 with effect from 1.4.2004 was clarificatory in nature and w a s to operate retrospectively. Once that is so, in the present case, the respondent assessee was entitled to deduction in respect of employers and employee's contribution to ESI and Provident Fund as the same had been deposited prior to the filing of the return under section 139(1) of the Act.
6. In view of the above, the substantial questions of law are answered against the revenue and in favour of the assessee. Consequently the appeals are dismissed"
Thus, the disputed issue is covered in favour of the appellant by the Hon'ble jurisdictional High Court of Punjab & Haryana. Therefore, the disallowance/addition of Rs. 9,10,183/- made by the CPC is not found sustainable and hence deleted.
Accordingly, this ground of appeal is allowed."
6. The ld. DR vehemently argued and relied on the intimation of the CPC. Further mentioned that this particular appeal is below the tax effect which has amount of Rs.88,460/-. But the appeal was filed considering the Board Circular 17/2019 dated 08.08.2019. So the particular issue is considered in the light of the legal issue.
7. We considered the submission of the ld. DR. The appeal is taken heard in consideration of Circular 17/2019 dated 08.08.2019. The ld. CIT(A) considered both the factual and legal issue with speaking order and adjudicate the issue in proper manner. The Coordinate Bench of the ITAT, Amritsar also dealt the same issue in favour of assessee. Reliance was placed in the orders of jurisdictional High Court & coordinate benches which are in favour of asseessee. The orders are as follows.
I.T.A. No. 192/Asr/2021 6a. Jurisdictional High Court:-
i. CIT vs Mark Auto Industries Ltd ITA no 57 of 2009, 358 ITR 0043 (Punjab & Haryana) ii. CIT vs Nuchem Ltd [2015] 59 taxmann.com 455 (Punjab & Haryana) and [2013] 40 taxmann.com 371 (Punjab & Haryana) b. Coordinate Benches:-
a) ACIT,Cir-3, Srinagar vs M/s Jammu & Kashmir Tourism Development Corporation, TRC, Srinagar, ITA 644&645/Asr/2017 date of order-19/03/2019
b) M/s Vinko Auto Industries Ltd vs. DCIT, CPC, Bangalore ITA:- 63 & 64/Asr/202, date of order:-08/11/2021 The fact is that the all the payments have been made within due date of filing of return of income u/s. 139(1) of the Income-tax Act and as such payment has been made and deposited in the Government account within the stipulated time u/s.
139(1) then no disallowance can be made in view of the decision of the Hon'ble Apex Court in the case of CIT v. Vinay Cement Ltd. [2007] 213 CTR 268, Hon'ble Delhi High Court in the case of CIT v. AIMIL Ltd. [2010] 188 Taxman 265/321 ITR 508 and Commissioner Of Income Tax, Circle-I, Kolkata vs M/S. Vijay Shree Limited, ITAT- 245 of 2011.
Considering the above, the issue is disposed of in the favour of the assessee and against the revenue.
I.T.A. No. 192/Asr/2021 7
8. In the result, the appeal of the revenue is dismissed.
Order pronounced in the open court on 10.05.2022 Sd/- Sd/-
(Dr. M. L. Meena) (ANIKESH BANERJEE)
Accountant Member Judicial Member
AKV (On Tour to ASR)
Copy of the order forwarded to:
(1)The Appellant
(2) The Respondent
(3) The CIT
(4) The CIT (Appeals)
(5) The DR, I.T.A.T.
True Copy
By Order