9911796707
TMI Blog2021 (8) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... U/s 143(1) of the Act. 2. That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in sustaining the addition of Rs. 438,530/- in respect of employees contribution to ESI & PF. 3. That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in disregarding the decision of jurisdictional High Court which is binding upon him. 4. That on the facts and in the circumstances of the case, the ld. CIT(A) ought to have deleted the addition in the light of law decided by the jurisdictional High Court and on similar issue decision passed in the assessee's own case for A.Y. 2018-19. 5. That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in not following the principle of natural justice." 4. During the course of hearing, the ld. AR, Mohit Soni submitted that the assessee is a partnership firm and during the year under consideration, the assessee derives income from execution of contract work and filed its return of income declaring an income of Rs. 2,71,15,850/-. The Central Processing Centre (CPC), Bangalore processed its return of income and passed an order u/s 143(1) in which it has made an adjustm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stained the disallowance made by the CPC while processing the return relying on the decisions of Hon'ble Delhi, Kerala and Madras High Courts and ignoring the binding decisions of the Hon'ble Rajasthan High Court referred supra. 10. It was submitted that recently, a similar matter came before the Agra Bench of the Tribunal in the case of Mahadev Cold Storage v/s AO, Aligarh (ITA No. 41 & 42/Agr/2021 dated 14.06.2021) wherein also the issue was exactly similar that the AO while processing the return made disallowance of contribution received from employees which was deposited lately than prescribed dates in respective statute but deposited prior to the scheduled date of filing return u/s 139(1). The matter was carried in appeal before the ld. CIT (A) who in faceless proceedings sustained the action of the AO relying on the judgment of the Hon'ble Gujarat High Court in the case of State Road Transport Corporation - 366 ITR 170 and ignoring the decision of the jurisdictional High Court of Allahabad rendered in the case of Sagan Foundry P Ltd. v/s CIT (145 DTR 265). The Agra Bench decided this issue in favour of the assessee holding that "NFAC is bound by the binding decision of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. In this regard, we may refer to the initial decision of Hon'ble Rajasthan High Court in case of CIT vs. State Bank of Bikaner & Jaipur wherein the Hon'ble High Court after extensively examining the matter and considering the various decisions of the Hon'ble Supreme Court and various other High Courts has decided the matter in favour of the assessee. In the said decision, the Hon'ble High Court was pleased to held as under: "20. On perusal of Sec.36(1)(va) and Sec.43(B)(b) and analyzing the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act." 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corportation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon'ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon'ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon'ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
