Axis Securities & Sales Ltd ( Formlery ... vs Department Of Income Tax

आयकर अपील य अ धकरण, मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES "A" MUMBAI सव ी आय.पी. बंसल, या यक सद य एवं ी राजे , लेखा सद य BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND

SHRI RAJENDRA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.1719/MUM/2013 नधा रण वष /AssessmentYear 2009-10 Dy.CI T,Cir.3(1), बनाम/M/s. Axis securities & Room No.607, 6 t h Floor, Sales Ltd., (formerly Vs. Aaykar Bhavan, known as Axis Sales Ltd.), Mumbai 400020 13 t h Floor, Maker Tower'F' Cuffe Parade, Colaba, Mumbai 400 005. थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAACH 1784M

(अपीलाथ /Appellant) .. ( यथ / Respondent)

Appellant by Ms. C. Tripura Sundari Respondent by None सनु वाई क तार"ख / Da te o f Hearing : 03/06/2015 घोषणा क तार"ख /Date of Pronouncement : 03/06/2015

आदे श / O R D E R

PER I.P.BANSAL, J.M:

This is an appeal filed by the Revenue and it is directed against the order passed by Ld. CIT(A)-5, Mumbai dated 26/9/2012 for assessment year 2009-

10. Grounds of appeal read as under:

1. "'Whether on the facts and in the circumstances of the case and in law the Ld. CIT (A) was justified in deleting the addition of Rs. 19,78,561/-, made u/ s 43B LW.S 36(1)(va) and 2(24)(x) on account of disallowance of Employee's Contribution to PF/ESIC/welfare fund since the payments were made after the due dates, holding that the payments have been made before filing of Return."

2 आयकर अपील सं. / ITA No.1719/MUM/2010 नधा रण वष /Assessment Year 2009-10

2. "Whether on the facts and in the circumstances of the case and in law the Ld. CIT (A) was justified in deleting the addition of Rs.19,78,561/- made u/ s 43B r.w.s 36(1)(va) and 2(24)(x) without appreciating the fact that the assessee is not entitled to deduction u/s 36(1)(va) in respect of Employees contribution to PF because section 43B comes into play only when a deduction is otherwise allowable under the Act as held by the Hon'ble ITAT 'C' Bench Kolkata in case of Bengal Chemical and Pharmaceuticals Ltd. (11 Taxmann.com)(2011)."

2. The Revenue in the present appeal is contesting deletion of disallowance of the following amounts made under section 43B r.w. section 36(1)(va) and 2(24)(x) of the Income Tax Act, 1961 (the Act):

(1)Employees contribution to PF Rs. 2318/- (2) ESIC Rs. 19,67,754/- (3) Employees welfare fund Rs. 8509/-

3. Ld. CIT(A) has deleted such addition on the arguments of the assessee that though the payments have been made after due date but they have been made before the due date of filing the return. The Revenue is aggrieved.

4. Notice of hearing was sent to the assessee. However, none was present on behalf of the assessee. Since the issue is covered in favour of the assessee by the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Ghatge Patil Transports, 368 ITR 749, we proceed to decide the present appeal ex-parte qua the assessee after hearing Ld. DR.

5. Ld. DR relied upon the order passed by AO.

6. We have heard Ld. DR. The fact that payments have been made by the assessee before the due date of filing the return is not disputed by the Revenue.

If it is so, then it can be held that the issue decided by Ld. CIT(A) is in accordance with the aforementioned decision of Hon'ble Bombay High Court in the case of CIT vs. Ghatge Patil Transport (supra). In the said decision, it has been held that assessee would be entitled to deduction in case contribution to 3 आयकर अपील सं. / ITA No.1719/MUM/2010 नधा रण वष /Assessment Year 2009-10

employees welfare fund should be credited on or before the due date of filing the return of income. For holding so their Lordships of Hon'ble Bombay High Court has relied upon the decision of Hon'ble Supreme Court in the case of Allom Extrusion Ltd., 319 ITR 306(SC). Therefore, we decline to interfere in the relief granted by Ld. CIT(A) and the appeal filed by the Revenue is dismissed.

7. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the open court on 03/06/2015 आदे श क घोषणा खुले यायालय म) *दनांकः 03/06/2015 को क गई ।

Sd/- Sd/- ( राजे , / RAJENDRA) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai; *दनांक Dated 03/06/2015 आदे श क त ल प अ!े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. आयकर आयु.त(अपील) / The CIT(A)- 4. आयकर आयु.त / CIT

5. /वभागीय त न1ध, आयकर अपील"य अ1धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, स या/पत त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS