Manoj Kumar Routray, Bhubaneswar v. ITO, Ward-2(1), Bhubaneswar

ITA 460/CTK/2015 | 2009-2010
Pronouncement Date: 25-10-2016 | Result: Allowed

Appeal Details

RSA Number 46022114 RSA 2015
Assessee PAN AEQPR5276P
Bench Cuttack
Appeal Number ITA 460/CTK/2015
Duration Of Justice 10 month(s) 2 day(s)
Appellant Manoj Kumar Routray, Bhubaneswar
Respondent ITO, Ward-2(1), Bhubaneswar
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 25-10-2016
Assessment Year 2009-2010
Appeal Filed On 23-12-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH CUTTACK BEFORE SHRI N. S SAINI ACCOUNTANT MEMBER ITA NOS.460 A& 461 /CTK/2015 ASSESSMENT YEAR S : 2009 - 2010 & 2010 - 2011 MANOJ KUMAR ROUTRAY SAKTI NAGAR SISUPALAGARH BHUBANESWAR. VS. ITO WARD 2(1) BHUBANES W AR. PAN/GIR NO. AEQPR 5276 P (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.K.MISHRA AR REVENUE BY : SHRI D.K.PRADHAN DR DATE OF HEARING : 2 5 /10 / 2016 DATE OF PRONOUNCEMENT : 25 /10 / 2016 O R D E R THESE ARE APPEAL S FILED BY THE ASSESSEE AGAINST SEPARATE ORDER S OF CIT(A) - 2 BHUBANESWAR BOTH DATED 18 TH SEPTEMBER 2015 FOR THE ASSESSMENT YEAR S 2009 - 2010 & 2010 - 2011 RESPECTIVELY . 2. THE SOLE ISSUE INVOLVED IN BOTH THE APEPALS IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING EMPLOYEES CONTRIBUTION TO PF OF RS.24 05 024/ - AND EMPLOYEES CONTRIBUTION TO ESIC OF RS.3 39 034/ - IN A.Y. 2009 - 2010 AN D EMPLOYEES CONTRIBUTION TO PF OF 2 ITA NOS.460 A& 461/CTK/2015 ASSESSMENT YEARS :2009 - 2010 & 2010 - 2011 RS.24 47 128/ - AND EMPLOYEES CONTRIBUTION TO ESI OF RS.2 99 581/ - IN A.Y. 2010 - 2011 RESPECTIVELY FOR DEPOSITING THE SAME WITH THE CONCERNED AUTHORITIES BEYOND DUE DATE PRESCRIBED UNDER THE RESPECTIVE ACT. 3. BRIEF FACTS O F THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT EMPLOYEES CONTRIBUTION TO PF OF RS.24 05 024/ - AN D EMPLOYEES CONTRIBUTION TO ESI OF RS.3 39 034/ - IN A.Y. 2009 - 2010 AND EMPLOYEES CONTRIBUTION TO PF OF RS. 24 47 128/ - AND EMPLOYEES CONTRIBUTION TO ESI OF RS.2 99 581/ - IN A.Y. 2010 - 2011 RESPECTIVELY HAS BEEN DEPOSITED BY THE ASSESSEE BEYOND DUE DATE PRESCRIBED UNDER THE PF AND ESI ACT AND THEREFORE HE DISALLOWED DEDUCTION FOR THE SAME U/S.36(1)(VA) OF THE ACT. WHICH WAS CONFIRMED IN APPEAL BY THE LD CIT(A). 4. BEFORE ME LD A.R. OF THE ASSESSEE SUBMITTED THAT AS CAN BE SEEN FROM THE DETAILS OF DEPOSITS OF EMPLOYEES CONTRIBUTION TO PF AND ESI RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDERS THAT A LL THE PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILI NG THE RETURN OF INCOME U/S.139( 1) OF THE ACT WHICH IS 31 ST OCTOBER OF THE RESPECTIVE ASSESSMENT YEARS IN BOTH THE YEARS UNDER APPEAL. THEREFORE IN VIEW OF THE DECISION OF HONBLE SUPREME COURT I N THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) NO DISALLOWANCE COULD BE MADE. HENCE HE PRAYED THAT THE DISALLOWANCE SHOULD BE DELETED. 3 ITA NOS.460 A& 461/CTK/2015 ASSESSMENT YEARS :2009 - 2010 & 2010 - 2011 5. ON THE OTHER HAND LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORITIES . 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND THAT THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF ESSAE TERAOKA (P) LTD.VS DCIT (2014) 366 ITR 408 VIDE JUDGMENT DATED 4.2.2014 HELD THAT THE WORD CONTRIBUTION WOULD MEAN IN EPF AND ESI ACT REFERS TO BOTH EMPLOYEES AND EMPLOYERS CONTRIBUTION TO PF AND THEREFORE NO DISALLOWANCE IS TO BE MADE UNDER SECTION 43B. THEREFORE DEDUCTION IS ALSO AVAILABLE TO EMPLOYEES CONTRIBUTION TO PF U/S.43B OF THE ACT. FURTHER THE HONBLE RAJASTHAN HIGH CO URT IN THE CASE OF CIT VS. STATE BANK OF BIKANER AND JAIPUR (2014) 363 ITR 70 (RAJ) (HC). AND JAIPUR VIDYUT VITARAN NIGAM LYTD. (2014) 363 ITR 307 (RAJ ) HELD THAT SECTION 43B O VERRIDES SECTION 36(1)(VA) AND DEDUCTION IS AVAILABLE FOR EMPLOYEES CONTRIBUTION U/S.43B OF THE ACT TO SAME EFFECT IS THE DECISION OF HONBLE UTTARAKHAND HIGH COURT IN THE CASE OF CIT VS.KICHHA SUGAR COMPANY LTD . (2013) 356 ITR 351 (UTTARAKHAND H C) ORDE R DATED 20.5.2013. TO THE SAME EFFECT IS ALSO THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V S. UDA IPUR DUGDH UTPADAK SAHAKARI SANG H LTD (2013) 35 TAXMANN.COM 616 (RAJ). THE CONTRARY VIEW IS THAT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS GUJARAT STATE ROAD TRANS PORT CORPN. (2014) 366 ITR 170 (GUJ) ORDER DATED 26.12.2013 WHEREIN IT WAS HELD THAT 43B DOES NOT APPLY TO EMPLOYEES CONTRIBUTION AND ONLY SECTION 2(24)(X) READ WITH SECTION 36(1)(VA) IS 4 ITA NOS.460 A& 461/CTK/2015 ASSESSMENT YEARS :2009 - 2010 & 2010 - 2011 APPLICABLE. THEREFORE EMPL OYEES CONTRIBUTION IS DISALLOWED IF NOT PAID WITHIN THE DUE DATE AS PER EPF/ESI ACT. THE SAID DECISION WAS RENDERED AFTER CONSIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CAS E OF ALOM EXTRUSIONS (SUPRA). THE HONBLE CALCUTTA HIGH COURT IN THE CA SE OF CIT VS VIJAYA SHREE LTD. (2011) TMI 30 HELD THAT EMPLOYEES CONTRIBUTION TO PF/ESI IS ALSO COVERED BY SECTION 43B AND IS ALLOWABLE AS DEDUCTION IF PAID BEFORE DUE DATE OF FILING THE RETURN OF INCOME. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GHATGE PATIL TRANSPORTS LTD. IN IT APPEAL NOS.1002 & 1034 OF 2012 VIDE ORDER DATED 14.10.2014 HAS HELD THAT EMPLOYEES CONTRIBUTION TO PF AND ESI IS ALLOWABLE IF THE SAME IS DEPOSITED BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S.2(24)(X) R.W.S. 36(1)(VA) AND 43B OF THE ACT. THE HONBLE DELHI HIGH COURT IN CIT VS. AIMIL LIMITED [2010] 321 ITR 508 (DEL) HAS HELD THAT THE EMPLOYEES CONTRIBUTION TOWARDS EPF AND ESI ETC. DEPOSITED AFTER THE DUE DATE BUT BEFORE THE TIME ALLOWED FOR FILING THE RETURN U/S.139(1) WILL NOT CALL FOR ANY DISALLOWANCE U/S.36(1)(VA) 7. IT IS ALSO SETTLED POSITION OF LAW THAT IF THERE ARE CONTRARY VIEWS OF DIFFERENT HIGH COURTS AND NONE OF THEM IS THE HONBLE JURISDICTIONAL HIGH COURT THEN THE DECISION FAVOURABLE TO TH E ASSESSEE SHOULD BE FOLLOWED. MY VIEW IS SUPPORTED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. VEGETABLES PRODUCT LTD. 88 ITR 192 (SC) . THEREFORE RESPECTFULLY 5 ITA NOS.460 A& 461/CTK/2015 ASSESSMENT YEARS :2009 - 2010 & 2010 - 2011 FOLLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF ESSAE TERAOKA (P) LTD.VS DCIT (SUPRA) AND OTHER DECISIONS REFERRED ABOVE (SUPRA) I HOLD THAT EMPLOYEES CONTRIBUTION TO PF AND ESI IS ALLOWABLE DEDUCTION TO THE ASSESSEE IF DEPOSITED BEFORE DUE DATE OF FILING OF RETURN U/S.139(1)OF THE ACT. 8. IN THE INST ANT CASE IT IS NOT IN DISPUTE THAT THE CONTRIBUTION TO PF AND ESI WAS DEPOSITED BY THE ASSESSEE BEFORE DUE DATE OF FILING THE RETURN OF INCOME U/S.139(1) OF THE ACT. THEREFORE I SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE DISALLOWANCE OF EM PLOYEES CONTRIBUTION TO PF OF RS.24 05 024/ - AND EMPLOYEES CONTRIBUTION TO ESIC OF RS.3 39 034/ - IN A.Y. 2009 - 2010 AND EMPLOYEES CONTRIBUTION TO PF OF RS.24 47 128/ - AND EMPLOYEES CONTRIBUTION TO ESI OF RS.2 99 581/ - IN A.Y. 2010 - 2011. 9. IN THE RESULT THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 25 /10 /2016 IN THE PRESENCE OF PARTIES. S D / - ( N. S SAINI ) A CCOUNTANT MEMBER CUTTACK; DATED 25 /10 /2016 B.K.PARIDA SPS 6 ITA NOS.460 A& 461/CTK/2015 ASSESSMENT YEARS :2009 - 2010 & 2010 - 2011 COPY OF THE ORDER FORWARDED TO : BY ORDER ASST.REGISTRAR ITAT CUTTACK 1. THE APPELLANT : MANOJ KUMAR ROUTRAY SAKTI NAGAR SISUPALAGARH BHUBANESWAR. 2. THE RESPONDENT. ITO WARD 2(1) BHUBANESWAR. 3. THE CIT(A) - 2 BHUBANESWAR 4. CIT BHUBANESWAR. 5. DR ITAT CUTTACK 6. GUARD FILE. //TRUE COPY//