Pr. Commissioner Of Income Tax @APPELLANT@Hash M/s Instrumentation Limited

Delay in filing the appeal is condoned. The application u/s 5 of the Limitation Act is allowed.

By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the

department.

Counsel for the appellant has framed the following substantial question of law:-

“Whether the Tribunal was legally justified in deleting the disallowance of Rs. 98,18,748/- made on account of employees contribution to provident

fund specifically when the amount claimed was not deposited in prescribed time and pertained to F.Y. 2008-09 but claimed in A.Y. 2010-11 thus being

contrary to the provisions of section 43B and 36(1) (va),2(24)(x)?â€​

Now the issue is covered by the decision of this court in case of Principal CIT, Kota vs. M/s Instrumentation Ltd. (DBITA No. 68/2015) and other

connected matters decided on 12th September, 2017, wherein it has been held as under:-

“5. The second issue is covered in view of the decision of this Court in Tax Appeal No. 61/2012 (Commissioner of Income Tax, Kota vs. M/s

Instrumentation Limited, Jhalawar Road, Kota) decided on 24th August, 2017 wherein it has been held as under:-

“4. Counsel for the appellant contended that the Tribunal and the CIT (Appeal) have seriously committed an error in reversing the view taken by

the A.O. inasmuch as while considering the issue of payment of contribution which was made, the A.O. has observed in para 7 which reads as

under:-

“As per audit the total employer’s contribution to provident fund is Rs.2,89,66,398/-. All these amount of Rs.9,19,93,302/- have been either not

paid or paid after prescribed time. Therefore, this amount of Rs.9,19,93,302/- should have been added while computing the income/loss, whereas the

assessee has not added in computation.

Hence the amount of Rs.2,89,66,398/- is added to the income of the assessee due to the non payment/delayed payment by the company.â€​

5. He contended that the view taken by the A.O.is required to be restored, in view of the provision of Section 43 (b) where by the payment which

was made is not allowed to be deducted.

Therefore, she contended that the view taken by the Tribunal and CIT (Appeal) is required to be reversed.

6. Counsel for the respondent has taken us to theorder passed by CIT (Appeal) who while considering the case in paragraph 4.3 held as under:-

“Moreover, the Hon’ble Delhi High Court in the case of CIT Vs. AIMIL Ltd, 321 ITR 508 has held that no disallowance can be made in

respect of Employers P.F. Contribution and Employees P.F. Contribution in case such contributions are paid before due date of filing. It is not in

dispute before us that the contributions have not been paid before due date of filing of the return. We therefore, hold that the ld. CIT(A) was justified

in deleting the Employers P.F. Contribution and Employees P.F. Contribution.â€​

 In other appeal, (68/2012) in Paragraph 5 which reads as under:-

“As per audit report the total employees contribution to provident fund is Rs.8,95,28,233/-. Out of this amount of Rs.6,65,74,815/- have not been

paid and amount of Rs.1,40,62,629/- have been paid after prescribed time/due date. Therefore, this amount of Rs.8,06,37,444/- should have been

added while computing the income/loss, whereas the assessee has added in computation an amount of Rs.6,65,74,815/- only on the account. Hence

the balance amount of Rs.1,40,62,629/- is added to the income of the assessee due to the non payment/delayed payment by the company.â€​

8. Counsel for the respondent has relied upondecision of this court reported in [2014]363 ITR 70 (Raj.), wherein it has been pointed out that SLP

against the said issue is pending.

6. Taking into consideration, subject to SLP the issue no. 2 is decided in favour of the assessee against the department.

7. In view of the above, the issue no. 1 is decided in favour of assessee in view of the judgment referred above and issue no. 2 is answered in

favour of assessee subject to SLP.â€​

In view of the above, the issue is answered in favour of assessee subject to SLP.

The appeal stands dismissed.