Shri Divyapalsingh Tejpalsinh Jadeja,, Baroda v. The Dy. Commissioner of Income Tax, Circle-1(2),, Vadodara

ITA 2702/AHD/2016 | 2012-2013
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 270220514 RSA 2016
Assessee PAN AAMPJ2789H
Bench Ahmedabad
Appeal Number ITA 2702/AHD/2016
Duration Of Justice 1 year(s) 1 month(s) 11 day(s)
Appellant Shri Divyapalsingh Tejpalsinh Jadeja,, Baroda
Respondent The Dy. Commissioner of Income Tax, Circle-1(2),, Vadodara
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags 2702
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 30-11-2017
Assessment Year 2012-2013
Appeal Filed On 19-10-2016
Judgment Text
LK LK LK LK- -- - E E E E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH AHMEDABAD LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] YS [KK LNL; DS LE{KA YS[KK LNL; DS LE{KA YS[KK LNL; DS LE{KA YS[KK LNL; DS LE{KA (BEFORE SHRI MAHAVIR PRASAD JUDICIAL MEMBER & SHRI AMARJIT SINGH ACCOUNTANT MEMBER ) ./ I.T.A. NO.2702/AHD/2016 ( / ASSESSMENT YEAR :2012-13) DIVYAPALSINGH TEJPALSHINGH JADEJA C-17 ANUPAM NAGAR OLD PADRA ROAD BARODA - 390020 / VS. DCIT CIRCLE 1(2) ITO AAYAKAR BHAVAN RACE COURSE CIRCLE BARODA 390 007 ./ ./ PAN/GIR NO. : AAMPJ 2789 H ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. K. PATEL A.R. / RESPONDENT BY : SHRI JAMES KURIAN SR. D.R / DATE OF HEARING 24/11/2017 !'# / DATE OF PRONOUNCEMENT 30/11/2017 $% / O R D E R PER MAHAVIR PRASAD JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-5 VADODARA DA TED 10/06/2016 FOR THE ASSESSMENT YEAR (AY) 2012-13 ON THE FOLLOW ING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. ASSESSING OFFICER ERRED IN DISALLOWING AND THE LD. CIT(A)-5 BARODA ERRED IN CONFIRMING DISALLOWANCE OF EMPLOYEES CONTR IBUTION TO PROVIDENT FUND AMOUNTING TO RS.25 27 196/-. ITA NO.2702/AHD /2016 DIVYAPALSINGH T. JADEJA VS.DCIT ASST.YEAR 2012-13 - 2 - 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED FROM THE PROFIT AND LOSS THAT ASSESSEE HAS CLAIMED RS.59 49 398/- EMPLOYEES PROVIDENT FUND EXPENSES. FURTHER ON VERIFICATION OF THE AUDIT REPORT IT IS NOTICED THAT ASSESSEE HAS DEPOSITED THE SAME AFTER PRESCRIBED DUE HOWEVER ASSESSEE WAS REQUIRED AS AN EMPLOYER TO CRE DIT EMPLOYEE CONTRIBUTION TO THE EMPLOYEES ACCOUNT IN THE PROVID ENT FUND UNDER THE PROVIDENT FUND ACT WITHIN THE PRESCRIBED DUE DATE. VIDE NOTICE DATED 03.11.2014 ASSESSEE WAS REQUESTED TO PROVIDE THE DE TAILED BIFURCATION OF EMPLOYEE - EMPLOYER CONTRIBUTION TOWARDS PF ALONG W ITH PROOF OF THE PAYMENTS. IN RESPONSE TO THAT ASSESSEE VIDE REPLY DATED 23.02 .2015 HAS SUBMITTED THE DETAILS AND ON VERIFICATION OF SAME I T IS NOTICED THAT OUT OF THAT TOTAL OF RS.59 49 398/- TOWARDS PF EXPENSES AS SESSEE HAS DEPOSITED RS.27 27 077/- AFTER DUE DATE AS PRESCRIBED IN THE RELEVANT ACT. THE DETAILS OF THE LATE DEPOSIT AMOUNT ARE AS UNDER: MONTH EMPLOYEES CONT. TO PF (RS.) DUE DATE OF DEPOSIT ACTUAL DATE OF DEPOSIT MARCH 2011 29816 15.04.2011 10.04.2012 33263 136802 APRIL 2011 131224 15.05.2011 10.04.2012 29177 34938 MAY 2011 28778 15.06.2011 10.04.2012 11278 145978 JUNE 2011 157299 15.07.2011 20.07.2012 JULY 2011 146817 15.08.2011 20.07.2012 AUGUST 2011 238386 15.09.2011 20.07.2012 SEPTEMBER 186912 15.10.2011 25.07.2012 ITA NO.2702/AHD /2016 DIVYAPALSINGH T. JADEJA VS.DCIT ASST.YEAR 2012-13 - 3 - 2011 OCTOBER 2011 164070 15.11.2011 25.07.2012 NOVEMBER 2011 161523 15.12.2011 25.07.2012 DECEMBER 2011 157889 15.01.2012 25.07.2012 JANUARY 2012 149026 15.02.2012 25.07.2012 FEBRUARY 2012 196165 15.03.2012 25.07.2012 MARCH 2012 587736 15.04.2012 05.05.2012 TOTAL 27 27 077/- 3. ON VERIFICATION OF AUDIT REPORT IT WAS NOTICED THAT THERE ARE LATE PAYMENTS. IN VIEW OF THE ABOVE ASSESSEE WAS SHOW CA USE TO EXPLAIN AS TO WHY THE LATE PAYMENTS MADE ON ACCOUNT OF PF SHOULD NOT BE DISALLOWED. ASSESSEE SUBMITTED FOLLOWING REPLY AS UNDER: 'THE OUTSTANDING EMPLOYER'S AS WELL AS EMPLOYER'S C ONTRIBUTION HAS BEEN PAID ON OR BEFORE THE DUE DATE OF FILING OF RE TURN I.E. 30-09-2012 & THEREFORE CANNOT BE DISALLOWED WHILE COMPUTING TOTA L TAXABLE INCOME FOR YEAR UNDER CONSIDERATION. AS SUCH THE OUTSTANDING AMOUNT OF PF/EPF AS ON 31-0 3-2012 IS PAID AFTERWARDS DURING PERIOD FROM 01-04-2012 TO 30-09-2 012 THEREFORE THE PAYMENT HAS ALREADY MADE TO PF AUTHORITY AND ALL OU TSTANDING MONEY PAID. HENCE IT CANNOT BE CONSIDERED AS PROFIT OR I NCOME WHEN AMOUNT IS BEING ALREADY PAID. IN CASE OF VINAY CEMENT LTD. CTR 268 (SC) RULING I T IS WELL ESTABLISHED AND RELEVANT IN THE CONTEXT OF PAYMENT OF PF/EPF EM PLOYEE AS WELL AS EMPLOYERS CONTRIBUTION IS ALLOWABLE DEDUCTION IF P AID ON OR BEFORE THE DUE DATE FILING RETURN OF INCOME. THEREFORE SIR AN Y PAYMENT MADE BY THE EMPLOYER EITHER IN RESPECT OF THE EMPLOYEES O R THE EMPLOYEES CONTRIBUTION BY DUE DATE OF FILING OF THE RETURN OF INCOME WOULD QUALIFYING FOR BEING ALLOWED AS A DEDUCTION FOR REL EVANT YEAR'. THE SUBMISSION OF THE ASSESSEE HAS DULY BEEN CONSID ERED HOWEVER NOT FOUND TENABLE. AS PER THE SECTION 36(1)(VA) OF THE ACT WHICH READS AS UNDER: ITA NO.2702/AHD /2016 DIVYAPALSINGH T. JADEJA VS.DCIT ASST.YEAR 2012-13 - 4 - 'ANY SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS E MPLOYEES TO WHICH THE PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) OF SECTION 2 APPLY IF ANY SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYE ES ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE. EXPLANATION :- FOR THE PURPOSE OF THIS CLAUSE 'DUE DATE' MEANS THE DATE BY THE WHICH THE ASSESSEE IS REQUIRED AS ON EMPLOYE R TO CREDIT AN EMPLOYEES CONTRIBUTION TO THE EMPLOYEES ACCOUNT I N THE RELEVANT FUND UNDER ANY ACT RULE ORDER OR NOTIFICATION ISSUED TH ERE UNDER OR UNDER ANY STANDING ORDER AWARD CONTRACT OF SERVICE OR O THERWISE' SECTION 2(24)(X) READS AS UNDER:- 'ANY SUM RECEIVED BY THE ASSESSEE FROM HIS EMPLOYEE S AS CONTRIBUTIONS TO ANY PROVIDENT FUND OR SUPERANNUATION FUND SET UP UNDER THE PROVISIONS OF THE EMPLOYEES STATE INSURANCE ACT 19 48 OR ANY OTHER FUND FOR THE WELFARE OF SUCH EMPLOYEES.' IN VIEW OF THE ABOVE THE ASSESSEE OUGHT TO PAY THE CONTRIBUTION OF THIS EMPLOYEES ON OR BEFORE THE DUE DATE. RELIANCE IS AL SO PLACED ON RECENT JUDGMENT OF JURISDICTIONAL COURT I.E. HONOURABLE HI GH COURT OF GUJARAT IN TAX APPEAL NO. 637 OF 2013 IN THE CASE OF GUJARAT STATE ROAD T RANSPORT CORPORATION & 10 OTHER APPEALS WHERE IN... 'HELD THAT WITH RESPECT TO THE SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EMPLOYEES TO WHICH PROVISIONS OF SUB-CLAUSE(X) OF CLAUSE (24) OF SECTION (2) APPLIES THE ASSESSEE SHALL BE ENTITLED TO DEDUCTION IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 WITH RESPECT TO SUCH SUM CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNT I N THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE MENTIONED IN THE EXPLANATION TO SECTION 36(1)(VA). CONSEQUENTLY IT IS HELD THAT TH E LEARNED TRIBUNAL HAS ERRED IN DELETING RESPECTIVE DISALLOWANCE BEING THE LEARNED TRIBUNAL HAS ERRED IN DELETING RESPECTIVE DISALLOWANCES BEING EM PLOYEES CONTRIBUTION TO PF ACCOUNT /SEI ACCOUNT MADE BY THE AO. AS AS S UCH SUCH SUMS WERE NOT CREDITED BY THE RESPECTIVE ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND OR FUNDS (IN THE PRESENT CASE PRO VIDENT FUND AND OR ESI FUND ON OR BEFORE THE DATE AS PER THE EXPLANATI ON TO SECTION 36(1)(VA) OF THE ACT I.E. DATE BY WHICH THE CONCERN ED ASSESSEE WAS REQUIRED AS AN EMPLOYER TO CREDIT EMPLOYEES CONTRIB UTION TO THE ITA NO.2702/AHD /2016 DIVYAPALSINGH T. JADEJA VS.DCIT ASST.YEAR 2012-13 - 5 - EMPLOYEES ACCOUNT IN THE PROVIDENT FUND UNDER THE P ROVIDENT FUND ACT AND/OR IN THE ESI FUND UNDER THE ESI ACT. 4.2 IN VIEW OF THE ABOVE FACTS AS PER THE STATEMEN T PROVIDED BY THE ASSESSEE THERE ARE LATE PAYMENTS MADE TO PF BEYOND THE TIME LIMIT. THE LATE PAYMENT OF ESIC AMOUNTING TO RS.27 27 077/- IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. SAME WAS NOT ACCEPTED BY THE AO. THEREFORE HE D ISALLOWED RS.27 27 077/-. 5. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. NOW APPEAL IS BEFORE US. 7. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. THE FACTS AND CIRCUMSTANCES OF THE CASE ARE SIMILAR TO THE CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION AND ORS[2014] WHE REIN MATTER WAS DECIDED BY THE HONBLE GUJARAT HIGH COURT. SIMILAR ISSUE WAS UPHELD THAT LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO PF AND ESI AND HAS HELD THAT SECTION 43B WHICH PERMITS A DEDUCTION FOR PAYM ENTS MADE UP TO THE DUE DATE FOR FILING THE RETURN OF INCOME APPLIES ON LY TO THE EMPLOYERS CONTRIBUTION TO THE PROVIDENT FUND ETC. IT DOES NOT APPLY TO THE EMPLOYEES CONTRIBUTION. THE EMPLOYEES CONTRIBUTION RECEIVED BY THE EMPLOYER- ASSESSEE IS DEEMED TO BE INCOME IN THE ASSESSEES H ANDS U/S.2(24)(X) AND IF THE ASSESSEE HAS NOT CREDITED THE SAID SUM TO TH E EMPLOYEES ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DAT E MENTIONED IN EXPLANATION TO SECTION 36(1)(VA) THE ASSESSEE SHAL L NOT BE ENTITLED TO DEDUCTIONS OF SUCH AMOUNT IN COMPUTING THE INCOME R EFERRED TO IN SECTION 28 OF THE ACT. ITA NO.2702/AHD /2016 DIVYAPALSINGH T. JADEJA VS.DCIT ASST.YEAR 2012-13 - 6 - 8. THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID HONBLE GUJARAT HIGH COURTS JUDGMENT WE DISMISS APPEAL OF THE ASSE SSEE. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISS ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 30 / 11 /201 7 SD/- SD/- VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG &' $ ( $ ) ()* $ ) ( AMARJIT SINGH ) ( MAHAVIR PR ASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 30/11/2017 PRITI YADAV SR. PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. -. / / CONCERNED CIT 4. / () / THE CIT(A)-5 VADODARA. 5. 012 **-. -.# '&$ $ / DR ITAT AHMEDABAD 6. 245 6 / GUARD FILE. % & / BY ORDER TRUE COPY '/& () ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD