Shri Sushilkumar P.Sharma, Surat v. The ACIT.,Circle-6,, Surat

ITA 1466/AHD/2011 | 2007-2008
Pronouncement Date: 28-11-2014 | Result: Dismissed

Appeal Details

RSA Number 146620514 RSA 2011
Assessee PAN ANEPS7230B
Bench Ahmedabad
Appeal Number ITA 1466/AHD/2011
Duration Of Justice 3 year(s) 6 month(s) 4 day(s)
Appellant Shri Sushilkumar P.Sharma, Surat
Respondent The ACIT.,Circle-6,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 28-11-2014
Date Of Final Hearing 18-11-2014
Next Hearing Date 18-11-2014
Assessment Year 2007-2008
Appeal Filed On 24-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFO RE SHRI MUKUL KR. SHRAWAT J.M. & SHRI ANIL CHATURVEDI A.M.) I. T. A. NO 1466 / AHD/ 20 1 1 (A SSESSMENT YEAR: 2007 - 08) SUSHILKUMAR P. SHARMA S.NO. 71 SAMEER COMPLEX NAVSARJAN SOCIETY PANDESARA SURAT V/S THE A.C.I.T. CIRCLE - 6 SURAT (APPELLAN T) (RESPONDENT) PAN: ANEPS 7230B APPELLANT BY : SHRI MEHUL SHAH RESPONDENT BY : SHRI NIMESH YADAV SR. D.R. ( )/ ORDER DATE OF HEARING : 18 - 11 - 2014 DATE OF PRONOUNCEMENT : 28 - 11 - 2014 PER SHRI ANIL CHATURVEDI A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) - IV SURAT DATED 18.01.2011 FOR A.Y. 2007 - 08. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL S TATED T O BE ENGAGED IN THE BUSINESS OF PROVIDING SECURITIES SERVICES . ASSESSEE FILED ITS RETUR N OF INCOME FOR A.Y. 07 - 08 ON 29.03.2008 DECLARING TOTAL INCOME OF RS. 47 24 130 / - . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U NDER SE CTION 143(3) VIDE ORDER DATED 31 .12.2009 AND THE TOTA L INCOME WAS DETERMINED AT RS. ITA NO 1466/AHD/2011 . A.Y. 2007 - 08 2 63 96 18 0/ - . AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFOR E CIT(A) WHO VIDE ORDER DATED 18 .0 1 .2011 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEV ED BY THE AFORESAID ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS; - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN CONFIRMIN G THE ACTION OF THE ASSESSING OFFICER IN MAKING DISALLOWANCE OF RS.11 07 227/ - ON ACCOUNT OF LATE PAYMENT OF EMPLOYEE'S CONTRIBUTION TO PROVIDENT FUND. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT THE LEARNED COMMISSIONER OF IN COME - TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING DISALLOWANCE OF RS. 3 75 155/ - AND RS. 1 89 664/ - ON - ACCOUNT OF LATE PAYMENT OF EMPLOYER'S CONTRIBUTION TO PROVIDENT FUND AND ESIC RESPECTIVELY. 1 ST GROUND IS WITH R ESPECT OF LATE DEPOSIT OF EMPLOYEES CONTRIBUTION OF PROVIDENT FUND. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PERUSING THE TAX AUDIT REPORT A.O NOTICED T HAT ASSESSEE HAS NOT DEPOSITED E MPLOYEES CONTRIBU TION OF PROVIDENT FUND AGGREGATING TO RS. 11 07 227/ - WITHIN THE PRESCRIBED DUE DATE S . HE THEREFORE DISALLOWED THE SUM OF RS. 11 07 227/ - U/S 36(1) (VA) OF THE ACT AND ADDED TO THE INCOME. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO UPHELD THE ORDER OF A.O BY HOLDIN G AS UNDER: - 3.1. DURING THE COURSE OF APPEAL PROCEEDINGS NONE APPEARED NOR ANY SUBMISSIONS WERE MADE. THE SOF ALSO DOES NOT MENTION ANY REASON WHY THE CLAIM OF THE APPELLANT IN RESPECT OF EMPLOYEES CONTRIBUTION TO P.F. NOT PAID WITHIN DUE DATE IS ADMISSIB LE. IN MY OPINION THE ACTION OF THE A.O. IS REQUIRED TO BE UPHELD AS EMPLOYEES CONTRIBUTION TO P.F. IS GOVERNED BY SPECIFIC PROVISIONS OF SECTION 2(24)(X) R.W.S. 36(L)(VA) OF THE ACT. SECTION 43B OF THE ACT HAS NO ROLE TO PLAY REGARDING EMPLOYEES CONTRIBUT ION TO P.F. THE ACCEPTED POSITION IS THAT EMPLOYEES CONTRIBUTION TO P.F. HAS NOT BEEN DEPOSITED WITHIN THE DUE DATE. THE APPELLANT IS THEREFORE CAUGHT WITHIN THE MISCHIEF OF SECTION 2(24)(X) R.W.S. 36(L)(VA) OF THE ACT. THE DISALLOWANCE MADE IS THEREFORE U PHELD. THIS GROUND IS DISMISSED. 5. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US. ITA NO 1466/AHD/2011 . A.Y. 2007 - 08 3 6. BEFORE US AT THE OUTSET LD. A.R. SUBMITTED THAT T HE ISSUE OF DELAYED PAYMENT OF E MPLOYEES CONTRIBUTION OF PROVIDENT FUND HAS TO BE DECIDED IN FAVOUR O F THE REVENUE IN VIEW OF THE DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION 366 ITR 170. THE LD. D.R. SUPPORTED THE ORDER OF A.O. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECO RD. IN THE PRESENT CASE IT IS AN AD MITTED FACT THAT THE AMOUNT OF E MPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND HAS BEEN DEPOSITED BEYOND THE DUE DATES PRESCRIBED UNDER THE RELEVANT ACT. THE HON BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRA NSPORT CORPORATION IN ITA NO 637/AHD/2013 HAS DECIDING THE ISSUE BY HOLDING AS UNDER: - 'ANY SUM WITH RESPECT TO THE EMPLOYEES CONTRIBUTION AS MENTIONED IN S. 36(L)(VA) ASSESSEE SHALL BE ENTITLED TO THE DEDUCTION OF SUCH SUM TOWARDS THE EMPLOYEES CONTRIBU TION IF THE SAME IS DEPOSITED IN THE ACCOUNTS OF THE CONCERNED EMPLOYEES AND IN THE CONCERNED FUND SUCH AS PROVIDENT FUND ESI CONTRIBUTION FUND ETC PROVIDED THE SAID SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNTS IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE 'DUE DATE' UNDER THE PROVIDENT FUND ACT ESI ACT RULE ORDER OR NOTIFICATION ISSUED THEREUNDER OR UNDER ANY STANDING ORDER AWARD CONTRACT OR SERVICE OR OTHERWISE. ..' 8. IN VIEW OF THE UNDISPUTED FACT THAT THE EMPLOYEES SHARE OF CONTRIB UT ION OF PROVIDENT FUND WAS PAID AFTER THE PRESCRIBED DUE DATE AND FOLLOWING THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION (SUPRA) WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS THIS GR OUND OF ASSESSEE IS DISMISSED. 2 ND GROUND IS WITH RESPECT TO DISALLOWANCE ON ACCOUNT OF LATE PAYMEN T OF E MPLOYERS CONTRIBUTION OF PROVIDENT F UND AND ESIC. ITA NO 1466/AHD/2011 . A.Y. 2007 - 08 4 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS A.O NOTICED T HAT ASSESSEE HAS NOT DEPOSITED E MPLOYERS CONTRIBUTION OF PROVIDENT F UND A MOUNTING TO RS. 3 75 155/ - AND E MPLOYERS CONTRIBUTI O N TOWARDS ESIC AMOUNTING TO RS. 1 89 664/ - WITHIN THE STIPULATED TIME. HE WAS THEREFORE OF THE VIEW THAT THE SAME IS NOT ALLOWABLE U/S 43B OF THE ACT AND ACCORDINGLY DISAL LOWED THE AGGREGATE AMOUNT OF RS. 5 64 819/ - . AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO UPHELD THE ORDER OF A.O BY HOLDING AS UNDER: - 4. GROUND NO.2 IS AGAINST ADDITION ON ACCOUNT OF EMPLOYERS CONTRIBUTION TO P.F & E.S.I .C. THE A.O. OBSERVED THAT THE APPELLANT HAD NOT DEPOSITED EMPLOYERS CONTRIBUTION TO P.F AMOUNTING TO RS.3 75 155/ - & E.S.I.C. AMOUNTING TO RS.189664/ - WITHIN THE TIME STIPULATED U/S 43B I.E. BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1). HE THEREFOR E HELD THAT THESE EXPENDITURES WERE INADMISSIBLE. IN THE GROUNDS OF APPEAL THE APPELLANT MENTIONS THAT NO OPPORTUNITY WAS GIVEN TO HIM OF BEING HEARD ON THIS ISSUE BY THE A.O. IT IS HOWEVER SEEN THAT THE APPELLANT DID NOT AVAIL ANY OF THE OPPORTUNITIES PRO VIDED TO HIM FOR HEARING OF THIS APPEAL WHEREIN HE COULD HAVE PROVIDED ANY EXPLANATIONS THAT HE WISHED TO PROVIDE THE A.O. NEITHER IN THE SOF NOR IN THE GROUNDS OF APPEAL DOES THE APPELLANT MENTION THAT THE FACTS CONSIDERED BY THE A.O. WERE NOT CORRECT. ON CE IT IS ACCEPTED THAT EMPLOYERS CONTRIBUTION TO P.F & E.S.I.C. WAS NOT MADE WITHIN THE STIPULATED PERIOD U/S. 43B THE SAID EXPENSES BECOME INADMISSIBLE. THE ACTION OF THE A.O. REQUIRES NO INTERFERENCE AND THE DISALLOWANCE IS UPHELD. THIS GROUND OF THE AP PELLANT FAILS. 10. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US. 11. BEFORE US LD. A.R. SUBMITTED THAT THE CONTRIBUTION HAS BEEN PAID AFTER THE DUE DATE AND THE SAME BE ALLOWED IN THE YEAR OF PAYME NT. ON A QUERY FROM THE BENCH THE LD. A .R. COULD NOT FURNISH THE DETAILS AND THE DATE OF THE PAYMENTS OF PROVIDENT FUND AND ESIC CONTRIBUTIONS . LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND CIT(A). 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UN DISPUTED FACT THAT THE EMPLOYERS CONTRIBUTION OF PROVIDENT FUND AND ESIC WAS NOT PAID WITHIN THE DUE DATE. BEFORE US NO MATERIAL HAS BEEN PLACED ON RECORD BY THE ASSESSEE ABOUT THE DETAILS OF ITS SUBSEQUENT ITA NO 1466/AHD/2011 . A.Y. 2007 - 08 5 PAYMENT. IN VIEW OF THESE FACTS WE FIND NO REASO N TO INTERFERE WITH T HE ORDER OF A.O. THUS THIS GROUND OF ASSESSEE IS DISMISSED. 13. IN THE RESULT THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28 - 11 - 201 4 . SD/ - SD/ - (MUKUL KR. SHRAWAT ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJES H COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHMEDABAD