Mediplus India Ltd., New Delhi vs Department Of Income Tax

Department by : Sh.P.Dhamkanunjna, Sr.D.R.

ORDER

PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER

This is an appeal filed by the Revenue directed against the order of the Ld.Commissioner of Income Tax (Appeals)-IX, New Delhi dated 30.8.2013 pertaining to the Assessment Year ('AY') 2010-11 on the following grounds.

"1. Whether in the facts and circumstances of the case, the Ld.CIT(A) erred in deleting the disallowance of Rs.10,95,887/- made by the AO on account of delay in payment of employees' contribution to EFP/ESI as per the provision of s.36(1)((va) read with s.2(24)(x) by following the judgement of Hon'ble Delhi High Court (AIMIL Ltd.). The Hon'ble ITAT Mumbai has discussed the above judgement of the Hon'ble Court in the case of ITO vs. LKP Securities (ITA/1093/Mum/2012) and has not followed the above judgement.

2. Whether in the facts and circumstances of the case, the Ld.CIT(A) erred in deleting the disallowance of Rs.21,928/- by holding that the door is a machinery on which additional depreciation is allowed.

3. The order of the Ld.CIT(A) is erroneous and contrary to facts and law.

4. That the grounds of appeal are without prejudice to each other.

ITA No.5900/Del/2013 A.Y. 2010-11 Mediplus India Ltd. Vs. DCIT

5. That the appellant craves leave to add, alter, amend or forgo any grounds of appeal raised above at the time of hearing."

2. Ground no.1 has to be dismissed on a plain reading of the ground itself. Admittedly the issue is covered by the judgement of the Jurisdictional High Court. Under such circumstances, the question of following an order from Mumbai Bench of the Tribunal simply does not arise. The Ld.CIT(A) has at para 5.4 of his order correctly held as follows.

"5.4. I have considered the findings recorded by the AO as per the assessment order, the submissions made by the AR and the facts of the case on record. The Hon'ble Delhi High Court in the case of CIT vs. PM Electronics Ltd. (supra) held that the subject issue is no longer res-integra in view of the decision of Hon'ble Supreme Court in the case of CIT vs. Vinay Cement Ltd. (supra) which has been followed by a Division Bench of Delhi High Court in the case of CIT vs. Dharmendra Sharma (2008) 297 ITR 320 (Del.). Therefore, PF payments and contribution to ESI which were made after the due date prescribed under the relevant Act and Rules but before the due date on furnishing the return of income under sub section (1) of section 139 are admissible u/s 36(1)(va) read with s.2(24)(x) and s.43B to the assessee in respect of both employer/employee contribution."

In the result this ground is dismissed.

3. Ground no.2 of the Revenue is also to be dismissed as the assessee is engaged in manufacturing of medical and surgical equipments which are extremely hazardous to any dust particle entering into the clean room where the manufacturing is undertaken. It was submitted that the manufacturing has to be undertaken in an extremely clean atmosphere where a micron of dust particle can also not be permitted, or else it shall adversely affect the quality of the product. The cleaning room itself is a plant and machinery and hence the door of the cleaning room cannot be considered otherwise. Thus the First Appellate Authority was right in holding that the door in question is part of the machinery. Thus, ground no.2 is dismissed.

2 ITA No.5900/Del/2013 A.Y. 2010-11 Mediplus India Ltd. Vs. DCIT

4. Ground no.3, 4 and 5 are general in nature.

5. In the result the appeal of the Revenue is dismissed.

Order pronounced in the Open Court on 22nd June, 2015.

Sd/- Sd/-

[I.C. SUDHIR] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER

Dt. the 22nd June, 2015

· Manga

Copy forwarded to: -

1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

3