Pr. Commissioner Of Income Tax, Jaipur-Ii, Jaipur v. Rajasthan Rajya Vidyut Prasaran Nigam Ltd., Janpath, Jyoti Nagar,Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 181 / 2017 Pr. Commissioner of Income Tax, Jaipur-II, Jaipur ----Appellant Versus Rajasthan Rajya Vidyut Prasaran Nigam Ltd., Janpath, Jyoti Nagar,Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. Arjun Singh for Mr. Sameer Jain. For Respondent(s) : _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Order 05/07/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the tribunal hasdismissed the appeal of the department. 2.Counsel for the appellant has framed the followingquestion(s):- “(i) Whether in the facts and circumstances of thecase the ITAT was justified in law in deletingaddition of Rs.23908425/- made for depositing theemoployee’s contribution to GPF, CPF & ESI beyondthe prescribed time limit provided in the respectiveActs. (ii) Whether in the facts and circumstances of thecase the ITAT has erred in holding that employee’scontribution to PF & ESI are governed by theprovision of Section 43B and not by section 36(1)(va) r.w.s. 2 (24) (x) of I.T. Act. “ 3.However, the issue is now covered against the departmentby the decision of this court in Commissioner of Income Tax,Jaipur-II, Jaipur Vs. Jaipur Vidut Vitran Nigam Ltd., D.B. IncomeTax Appeal No.278/2011 and other connected matters decided on 06[th] January, 2014 which reads as under:- “1. These Income Tax Appeals under Section 260A ofthe Income Tax Act (for short I.T. Act) are directedagainst the orders dated 30/09/2008, 20/08/2010,30/09/2008, 30/09/2008 & 30/09/2008 of IncomeTax Appellate Tribunal, Jaipur Bench, Jaipur (forshort ITAT) arising out of ITA No.825/JP/2008 forAssessment Year 2005-06, ITA No.333/JP/2010Assessment Year 2006-07, ITA No.826/JP/2008Assessment Year 2003-04, ITA No.76/JP/2008Assessment Year 2001-02 and ITA No. 827/JP/2008Assessment Year 2004-05 respectively. 2. Since the controversy involved is identical, theseIncome Tax Appeals are being decided by thiscommon order. 3. The brief facts as reveal from the record are thata claim was made by the respondent-assessee aboutpayment of GPF, CPF and ESI and the said amountwas claimed under Section 36(1)(va) read withSection 43B of the I.T. Act. It is the claim of therevenue that the said amount though paid by theassessee, but was not paid within the due date asgiven under the relevant Act of GPF, CPF and ESIand, therefore, the said amount could not be allowedeither under Section 36(1)(va) and even underSection 43B of the I.T. Act as it was not paid on orbefore the due date of the respective Acts. 4. It is the claim of the respondent-assessee thatthough the amount could not be paid on or beforethe due date under the respective Act, but the samewas deposited on or before the due date offurnishing of the Income Tax returns under Section139 of the I.T. Act and, therefore, in view of Section43B read with Section 36(1)(va) of the I.T. Act theentire amount was allowable. 5. Counsel for the revenue submitted that theamount had to be deposited on or before the duedate of the respective GPF Act, CPF Act and ESI Actand since the same was not paid on or before thedue date of the respective Acts, therefore, it was noteven allowable under the provisions of Section 36(1)(va) of the I.T. Act nor could be allowed underSection 43B of the I.T. Act. 4. It is the claim of the respondent-assessee thatthough the amount could not be paid on or beforethe due date under the respective Act, but the samewas deposited on or before the due date offurnishing of the Income Tax returns under Section139 of the I.T. Act and, therefore, in view of Section43B read with Section 36(1)(va) of the I.T. Act theentire amount was allowable. 5. Counsel for the revenue submitted that theamount had to be deposited on or before the duedate of the respective GPF Act, CPF Act and ESI Actand since the same was not paid on or before thedue date of the respective Acts, therefore, it was noteven allowable under the provisions of Section 36(1)(va) of the I.T. Act nor could be allowed underSection 43B of the I.T. Act. 6. We have considered the arguments advanced bythe learned counsel for the revenue and have alsogone through the impugned orders. In our view nosubstantial question of law arise out of the orders ofthe ITAT as it is an admitted fact that the entireamount was deposited by the respondent-assesseeat least on or before the due date of filing of thereturns under Section 139 of the I.T. Act and being aconcurrent finding of fact by the respectiveauthorities and in the light of the judgmentsrendered by this Court in the case of Commissionerof Income Tax vs. M/s State Bank of Bikaner &Jaipur (D.B. Income Tax Appeal No.177/2011) soalso Commissioner of Income Tax vs. Jaipur VidyutViaran Nigam Ltd. (D.B. Income Tax AppealNo.189/2011), of even date wherein it has been heldthat if the amount has been deposited on or beforethe due date of filing the return under Section 139and admittedly it was deposited on or before the duedate then the amount cannot be disallowed underSection 43B of the I.T. Act or under Section 36(1)(va) of the Act. In fact in the above matters one ofthe party is same as in the present appeals,therefore, the issue is no more res-integra in thelight of judgments of this Court referred to supraand, in our view, no substantial question of lawarises out of the impugned orders of the ITAT, whichmay require attention of this Court. 7. We find no merit in these appeals and the sameare hereby dismissed in limine.” 4.In view of the above, this appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. Mohit Grover Sr. No.25.