M/s. U.P.Cooperative Processing & Cold Storage Federation Ltd.,, Lucknow v. Asstt. Commissioner of Income Tax,, Lucknow

ITA 281/LKW/2013 | 2009-2010
Pronouncement Date: 31-07-2015 | Result: Dismissed

Appeal Details

RSA Number 28123714 RSA 2013
Assessee PAN AAACU3507F
Bench Lucknow
Appeal Number ITA 281/LKW/2013
Duration Of Justice 2 year(s) 3 month(s) 8 day(s)
Appellant M/s. U.P.Cooperative Processing & Cold Storage Federation Ltd.,, Lucknow
Respondent Asstt. Commissioner of Income Tax,, Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 31-07-2015
Date Of Final Hearing 05-06-2015
Next Hearing Date 05-06-2015
Assessment Year 2009-2010
Appeal Filed On 22-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI. A. K. GARODIA ACCOUNTANT MEMBER ITA NO.281/LKW/2013 ASSESSMENT YEAR:2009-10 M/S U.P. COOPERATIVE PROCESSING & COLD STORAGE FEDERATION LIMITED 19-A VIDHAN SABHA MARG LUCKNOW V. ACIT RANGE II LUCKNOW TAN/PAN:AAACU3507F (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. P. K. KAPOOR C.A. RESPONDENT BY: SHRI. AMIT NIGAM D.R. DATE OF HEARING: 05 06 2015 DATE OF PRONOUNCEMENT: 31 07 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) INTER ALIA ON THE FOLLOWING GROUNDS:- 1.1 BECAUSE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.30 00 000/- BEING THE BONUS PAYABLE TO EMPLOYEES WHICH HAD BEEN DISALLOWED BY THE ASSESSING OFFICER BY INVOKING PROVISIONS OF SECTION 43B OF THE 'ACT' ON THE GROUND THAT THE SAME WAS NOT PAID BEFORE THE DUE DATE OF FILING OF RETURN. 1.2 BECAUSE WITHOUT PREJUDICE TO GROUND NO. 1.1 AND IN ANY CASE BONUS AMOUNTING TO RS.17 62 422/- PERTAINING TO EARLIER YEAR ACTUALLY PAID DURING THE YEAR UNDER APPEAL SHOULD HAVE BEEN ALLOWED AS PER PROVISION OF SECTION 43B. 2.1 BECAUSE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.36 76 819/- BEING AMOUNT DEPOSITED UNDER THE :- 2 -: GROUP GRATUITY SCHEME OF LIC OF INDIA ON THE GROUND THAT THE GRATUITY FUND OF THE APPELLANT WAS NOT APPROVED BY THE COMPETENT AUTHORITY FOR RECOGNITION OF THE GRATUITY FUND AS PROVIDED UNDER THE PROVISIONS OF SECTION 36(L)(V) OF THE 'ACT'. 2.2 BECAUSE THE AMOUNT OF RS.36 76 819/- HAD DULY BEEN PAID TO THE LIC OF INDIA UNDER THE GROUP GRATUITY SCHEME FOR BEING CREDITED TO THE EMPLOYEES ACCOUNT AND AS SUCH THE SAME WAS LIABLE TO BE ALLOWED IRRESPECTIVE OF THE FACT THAT THE APPROVAL TO THE GRATUITY FUND SOUGHT BY THE APPELLANT FROM COMMISSIONER OF INCOME-TAX HAD NOT YET BEEN RECEIVED. 2.3 BECAUSE IRRESPECTIVE OF THE PLEA TAKEN IN GROUND NO. 2.1 & 2.2 THE CLAIM OF RS.36 76 819/- DESERVED TO BE ALLOWED IN VIEW OF THE FACT THAT THE APPLICATION FILED BY THE ASSESSEE ON 17.08.2005 BEFORE THE COMPETENT AUTHORITY (I.E. COMMISSIONER OF INCOME-TAX) WAS STILL UNDER ACTIVE CONSIDERATION AND THE SAME HAD NOT BEEN REJECTED. 3.1 BECAUSE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.36 16 503/- BEING EMPLOYER'S CONTRIBUTION TO EMPLOYEES PROVIDENT FUND ON THE GROUND THAT ASSESSEE FAILED TO PRODUCE THE COPY OF COMPETENT AUTHORITY'S APPROVAL OF ITS PROVIDENT FUND SCHEME AS PER PROVISIONS OF SECTION 36(I)(IV) OF THE 'ACT'. 3.2. BECAUSE APPLICATION FOR RECOGNITION OF PROVIDENT FUND FILED BY THE ASSESSE BEFORE THE COMPETENT AUTHORITY (I.E. COMMISSIONER OF INCOME-TAX) WAS STILL UNDER THE ACTIVE CONSIDERATION AND THE SAME HAD NOT BEEN REJECTED THE CIT(A) SHOULD HAVE ALLOWED THE SUM OF RS.36 16 503/- CLAIMED AS EMPLOYER'S CONTRIBUTION TO EMPLOYEES PROVIDENT FUND. 4. BECAUSE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.65 249/- BEING THE DIFFERENCE BETWEEN DEPOSITS AND DEDUCTION OF EMPLOYEES' PROVIDENT FUND BY PRESUMING THAT THE SAME REPRESENTED PENAL INTEREST ON LATE DEPOSITS. :- 3 -: 5. BECAUSE THE APPELLANT RESERVES ITS RIGHT TO ADD DELETE OR ALTER ANY OTHER GROUND OR GROUNDS OF APPEAL WITH THE PERMISSION OF THE CHAIR BEFORE HEARING OR AT THE TIME OF HEARING OF APPEAL. 6. BECAUSE THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE UNJUST UNREASONABLE AND ALSO BAD IN LAW. 2. APROPOS GROUNDS NO.1.1 AND 1.2 IT IS NOTICED THAT THE ASSESSING OFFICER HAS DISALLOWED BONUS PAYABLE AMOUNTING TO RS.30 LAKHS UNDER SECTION 43B OF THE INCOME-TAX ACT 1961 (HEREINAFTER CALLED IN SHORT THE ACT') AS THE SAME WAS NOT PAID BEFORE THE DUE DATE OF FILING OF THE RETURN. THE ASSESSING OFFICER HAS ALSO DISALLOWED THE PAYMENT OF RS.17 62 422/- DURING THE YEAR AS IT RELATES TO THE EARLIER YEAR PERIOD ACCORDING TO THE ASSESSEE. 3. BEFORE THE LD. CIT(A) THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS DISALLOWED THE PROVISION FOR PAYMENT OF BONUS TO ITS EMPLOYEES OF RS.30 LAKHS HAVING INVOKED THE PROVISIONS OF SECTION 43B OF THE ACT. IT WAS ALSO CONTENDED ON BEHALF OF THE ASSESSEE THAT UNDER THE HEAD BONUS THE ASSESSEE MADE PAYMENT OF RS.17 62 422/- DURING THE YEAR UNDER APPEAL WHICH RELATES TO EARLIER PERIOD AND SHOULD BE ALLOWED ON PAID BASIS. HE HAS ALSO FILED COPY OF LEDGER ACCOUNT OF BONUS BEFORE THE LD. CIT(A). 4. THE LD. CIT(A) RE-EXAMINED THE CLAIM OF THE ASSESSEE AND WAS OF THE VIEW THAT DISALLOWANCE OF RS.30 LAKHS HAS BEEN RIGHTLY MADE BY THE ASSESSING OFFICER AS IT WAS NOT PAID BEFORE THE DUE DATE OF FILING OF THE RETURN I.E. 30.9.2009. WITH REGARD TO THE CLAIM OF THE ASSESSEE THAT RS.17 62 422/- WHICH IS THE LIABILITY EXISTING ON THE FIRST DAY OF THE CURRENT YEAR BUT PAID DURING THE YEAR AND SHOULD BE ALLOWED AS DEDUCTION THE LD. CIT(A) HAS OBSERVED THAT NO SUCH CLAIM WAS DISALLOWED IN ANY OF THE EARLIER :- 4 -: YEARS AS IS EVIDENT FROM THE AUDIT REPORT. HE ACCORDINGLY CONFIRMED THE DISALLOWANCE OF RS.17 62 422/- AS IT WAS NEVER DISALLOWED IN EARLIER YEARS. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE ASSESSING OFFICER HAS WRONGLY DISALLOWED THE CLAIM OF THE ASSESSEE. HE HAS ALSO REITERATED ITS CONTENTIONS AS RAISED BEFORE THE LD. CIT(A) WHEREAS THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDERS OF THE LOWER AUTHORITIES. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS WE FIND FROM THE BALANCE SHEET AS ON 31.3.2009 THAT AN AMOUNT OF RS.30 LAKHS WAS APPEARING UNDER THE HEAD BONUS PAYABLE (2008-09) AND THIS AMOUNT WAS NOT PAID TILL 30.9.2009. WHEN THIS FACT WAS CONFRONTED TO THE ASSESSEE THE ASSESSEE VIDE REPLY DATED 26.12.2011 ADMITTED THAT THE BONUS PAYABLE AT RS.30 LAKHS COULD NOT BE PAID BEFORE THE DUE DATE OF FILING OF THE RETURN I.E. 30.9.2011. HE HOWEVER CLAIMED THAT A PROVISION UNDER SECTION 43B OF THE ACT IS APPLICABLE IN THE PRESENT CASE BUT THIS ARGUMENT CANNOT BE APPRECIATED AS THE PROVISION FOR BONUS PAYABLE CANNOT BE ALLOWED UNDER SECTION 43B OF THE ACT. SINCE THE ASSESSEE HAS NOT MADE PAYMENT BEFORE THE DUE DATE OF FILING OF THE RETURN THE LOWER AUTHORITIES HAVE RIGHTLY DISALLOWED THE CLAIM OF PAYMENT OF BONUS OF RS.30 LAKHS. 7. SO FAR AS THE DISALLOWANCE OF RS.17 62 422/- IS CONCERNED WE FIND THAT THIS AMOUNT WAS NOT DISALLOWED IN EARLIER YEARS THEREFORE IT CANNOT BE ALLOWED AND ADJUSTED IN THE CURRENT YEAR. ACCORDINGLY THE ORDER OF THE LD. CIT(A) ON THIS ISSUE IS CONFIRMED. 8. APROPOS GROUNDS NO.2.1 AND 2.2 IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO FURNISH THE COPY OF APPROVAL GRANTED BY THE COMPETENT AUTHORITY FOR RECOGNITION OF THE GRATUITY FUND AS PROVIDED UNDER THE PROVISIONS OF SECTION :- 5 -: 36(1)(V) OF THE ACT. IN RESPONSE THERETO IT WAS STATED BY THE ASSESSEE THAT HE HAS FILED A PETITION FOR GRANT OF APPROVAL AND THE SAME IS PENDING BEFORE THE APPROPRIATE AUTHORITY. SINCE GRATUITY FUND WAS NOT RECOGNIZED BY THE APPROPRIATE AUTHORITY THE ASSESSING OFFICER HAS DISALLOWED THE PAYMENT OF RS.36 76 819/- PAID UNDER THE GRATUITY SCHEME WITH LIFE INSURANCE CORPORATION OF INDIA. 9. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND REITERATED ITS CONTENTIONS. THE LD. CIT(A) RE-EXAMINED THE CLAIM OF THE ASSESSEE IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS AND WAS OF THE VIEW THAT SINCE GROUP GRATUITY FUND IS NOT APPROVED AS PER REQUIREMENTS OF THE PROVISIONS OF SECTION 36(1)(V) OF THE ACT THE ADDITION MADE BY THE ASSESSING OFFICER DESERVES TO BE APPROVED. HE ACCORDINGLY CONFIRMED THE ADDITION. 10. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND REITERATED ITS CONTENTIONS BUT THE ASSESSEE HAS NOT FILED ANY EVIDENCE WITH REGARD TO THE APPROVAL FOR GRATUITY FUND BY THE COMPETENT AUTHORITY. SINCE IT IS MANDATORY REQUIREMENT OF PROVISIONS OF SECTION 36(1)(V) OF THE ACT THE CLAIM OF PAYMENT UNDER GROUP GRATUITY FUND CANNOT BE ALLOWED. WE THEREFORE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY WE CONFIRM THE SAME. 11. APROPOS GROUNDS NO.3.1 AND 3.2 IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO FURNISH THE COPY OF APPROVAL GRANTED BY THE COMPETENT AUTHORITY FOR RECOGNITION OF PROVIDENT FUND AS PROVIDED UNDER SECTION 36(1)(IV) OF THE ACT. IN RESPONSE THERETO IT WAS CONTENDED THAT THE ASSESSEE HAS SUBMITTED APPLICATION FOR GRANT OF APPROVAL AND THE SAME IS PENDING BEFORE THE APPROVING AUTHORITY BUT IT WAS NOT RECOGNIZED. SINCE THE PROVIDENT FUND WAS NOT RECOGNIZED BY THE COMPETENT AUTHORITY THE ASSESSING OFFICER :- 6 -: HAS DISALLOWED THE EXPENDITURE OF RS.36 16 503/- UNDER THE HEAD EMPLOYERS CONTRIBUTION TOWARDS PROVIDENT FUND. 12. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS ALSO TAKEN NOTE OF ALL THESE FACTS THAT SINCE THE PROVIDENT FUND WAS NOT RECOGNIZED BY THE COMPETENT AUTHORITY THE CLAIM OF THE ASSESSEE IS NOT SUSTAINABLE. ACCORDINGLY THE DISALLOWANCE WAS CONFIRMED. 13. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND REITERATED ITS CONTENTIONS BUT NO EVIDENCE WAS FILED WITH REGARD TO THE RECOGNITION OF PROVIDENT FUND BY THE COMPETENT AUTHORITY AS PER PROVISIONS OF SECTION 36(1)(IV) OF THE ACT. 14. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS WE FIND THAT IN THE ABSENCE OF PROPER RECOGNITION BY THE COMPETENT AUTHORITY THE EXPENDITURE OF RS.36 16 503/- UNDER THE HEAD EMPLOYERS CONTRIBUTION TOWARDS PROVIDENT FUND CANNOT BE ALLOWED. WE ACCORDINGLY CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. 15. APROPOS GROUND NO.4 IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS NOTICED THAT TOTAL DEDUCTION ON ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS EPF FROM APRIL 2008 TO MARCH 2009 WAS RS.58 87 417/- WHEREAS THE AMOUNT DEPOSITED WAS RS.59 52 666/-. THE DIFFERENCE OF RS.65 249/- WAS ADDED AS INCOME BY THE ASSESSEE TREATING THE SAME AS PENAL INTEREST AGAINST WHICH AN APPEAL WAS FILED BEFORE THE LD. CIT(A) BUT NO SUBMISSION WAS ADVANCED AND THE LD. CIT(A) HAS CONFIRMED THE ADDITION. 16. NOW THE ASSESSEE IS BEFORE US BUT NO ARGUMENT WAS ADVANCED TO POINT OUT ANY DEFECT IN THE ORDERS OF THE LOWER AUTHORITIES. IN THE LIGHT OF THESE FACTS WE CONFIRM THE ADDITION MADE BY THE LOWER AUTHORITIES. :- 7 -: 17. GROUNDS NO.6 & 7 ARE GENERAL IN NATURE AND NEED NO SPECIFIC ADJUDICATION. 18. IN THE RESULT APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST JULY 2015 JJ:2207 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR