Commissioner Of Income Tax, Kota v. M/S Instrumentation Limited, Jhalawar Road, Kota

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 61 / 2012 Commissioner of Income Tax, Kota ----Appellant Versus M/S Instrumentation Limited, Jhalawar Road, Kota ----Respondent Connected With D.B. Income Tax Appeal No. 68 / 2012 Commissioner of Income Tax, Kota ----Appellant Versus M/S Instrumentation Limited, Jhalawar Road, Kota ----Respondent _____________________________________________________ For Appellant(s) : Mrs. Parinitoo Jain with Ms. Shiva Goyal For Respondent(s) : Mr. Anant Kasliwal with Ms. Charu Pareek _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Judgment 24/08/2017 1.In these appeals, common question of law and facts areinvolved therefore, they are decided by the common judgment. 2.By way of these appeals, the appellant has challenged thejudgment and order of the tribunal whereby the tribunal hasallowed the appeal preferred by the assessee confirming the orderof the CIT (Appeal). 3.This court while admitting the appeals on 28.10.2014 has framed following substantial questions of law:- “Whether the Tribunal was legally justified inupholding findings of the CIT(A) and allowingthe amount of contribution to provident fundU/s.43B when the amount calimed was for thepreceding year and not deposited in time thusbeing contrary to the provisions of section 43Band 36(1) (va), 2(24)(x)?” 4.Counsel for the appellant contended that the Tribunal and the CIT (Appeal) have seriously committed an error in reversingthe view taken by the A.O. inasmuch as while considering theissue of payment of contribution which was made, the A.O. hasobserved in para 7 which reads as under:- “As per audit the total employer’s contribution toprovident fund is Rs.2,89,66,398/-. All theseamount of Rs.9,19,93,302/- have been either notpaid or paid after prescribed time. Therefore, thisamount of Rs.9,19,93,302/- should have beenadded while computing the income/loss, whereasthe assessee has not added in computation.Hence the amount of Rs.2,89,66,398/- is addedto the income of the assessee due to the nonpayment/delayed payment by the company.” 5.He contended that the view taken by the A.O. is required tobe restored, in view of the provision of Section 43 (b) where bythe payment which was made is not allowed to be deducted.Therefore, she contended that the view taken by the Tribunal andCIT (Appeal) is required to be reversed. 6.Counsel for the respondent has taken us to the order passed by CIT (Appeal) who while considering the case in paragraph 4.3held as under:- “Moreover, the Hon’ble Delhi High Court in thecase of CIT Vs. AIMIL Ltd, 321 ITR 508 has held that no disallowance can be made in respect ofEmployers P.F. Contribution and Employees P.F.Contribution in case such contributions are paidbefore due date of filing. It is not in disputebefore us that the contributions have not beenpaid before due date of filing of the return. Wetherefore, hold that the ld. CIT(A) was justified indeleting the Employers P.F. Contribution andEmployees P.F. Contribution.” 7.In other appeal, (68/2012) in Paragraph 5 which reads as under:- “As per audit report the total employeescontributiontoprovidentfundisRs.8,95,28,233/-. Out of this amount ofRs.6,65,74,815/- have not been paid andamount of Rs.1,40,62,629/- have been paidafter prescribed time/due date. Therefore, thisamount of Rs.8,06,37,444/- should have beenadded while computing the income/loss, wherasthe assessee has added in computation anamount of Rs.6,65,74,815/- only on theaccount. Hence the balance amount ofRs.1,40,62,629/- is added to the income of theassessee due to the non payment/delayedpayment by the company.” 7.In other appeal, (68/2012) in Paragraph 5 which reads as under:- “As per audit report the total employeescontributiontoprovidentfundisRs.8,95,28,233/-. Out of this amount ofRs.6,65,74,815/- have not been paid andamount of Rs.1,40,62,629/- have been paidafter prescribed time/due date. Therefore, thisamount of Rs.8,06,37,444/- should have beenadded while computing the income/loss, wherasthe assessee has added in computation anamount of Rs.6,65,74,815/- only on theaccount. Hence the balance amount ofRs.1,40,62,629/- is added to the income of theassessee due to the non payment/delayedpayment by the company.” 8.Counsel for the respondent has relied upon decision of thiscourt reported in [2014]363 ITR 70 (Raj.), wherein it has beenpointed out that SLP against the said issue is pending. 9.Accordingly, the issue is required to be answered in favour ofthe assessee subject to pendency of SLP. 10.In view of the proviso which is sought to be relied upon inour considered opinion, the contention which is sought to be reliedupon for previous year was not based even before the CIT(Appeal) or before the Tribunal. 11.It is made clear that if the payment is made before filing ofthe return of the relevant year, the assessee will be entitled for benefit under Section 43-B. Question of detailed payment underPF Act and other act is subject matter of decision of SupremeCourt. 12.The appeals are accordingly disposed of. (INDERJEET SINGH)J. (K.S.JHAVERI)J. JyotiItem No.53-54