2020 (8) TMI 34

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....632/- on account of late deposit of ESI arbitrarily. Thus the disallowance so made deserves to be deleted." 2. The hearing of this appeal was concluded through video conference in view of the prevailing situation of COVId-19 pandemic. The only issue arises in this appeal of the assessee is the disallowance of Rs. 1,34,632/- on account of late deposit of ESI contribution. The ld. AR of the assessee has submitted that there is only minor delay in the payment of ESI contribution however, the payment was made before the end of the financial year itself and therefore, the payment was made much before the due date of filing of return of income U/s 139(1) of the Act. The ld. AR of the assessee has pointed out that this issue is covered by the v....

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..... Jaipur Vidyut Vitran Nigam Ltd. 363 ITR 307 and in case of CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. 366 ITR 163. We further note that the ld. CIT(A) though has not disputed the various decisions of Hon'ble High Court however, disallowance made by the AO are sustained as he misunderstood the decision of Hon'ble Jurisdictional High Court in case of PCIT vs. M/s Rajasthan Renewable Energy Corporation Limited in DB ITA No. 10,11 & 12/2018 dated 13.03.2018. In the case of PCIT vs. M/s Rajasthan Renewable Energy Corporation Limited (supra) the Hon'ble High Court has considered this issue in para 4 to 6 as under:- "4. So far as question No. 1 is concerned, the same is now covered by the decisions of this Court in Principal Comm....

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....of Bikaner and Jaipur in SLP(c) No. 16249/2014, therefore, subject to decision of SLP, for the present, these issues are decided on in favour of the department and against the assessee. It will be open for the department to recover the amount if the decision is in their favour." Thus, it is clear that the Hon'ble jurisdictional High Court has followed the earlier decisions in case of PCIT vs. Rajasthan State Seed Corporation Limited 386 ITR 267 as well as decision in case of CIT vs. State Bank of Bikaner & Jaipur (supra). All these decisions which were ollowed by the Hon'ble jurisdictional High Court are in favour of the assessee however, in the conclusion in para 6 there is a typographical mistake wherein it is stated "these issue....

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....ibunal, therefore, it was appropriate to wait for outcome of the quantum proceeding though it is not necessary. The ld. CIT(A) has not decided the issue by speaking but dismissed the appeal of the assessee summarily for want of any attendance on behalf of the assessee. It is pertinent to note that before the impugned order was passed by the ld. CIT(A) the appeal of the assessee in the quantum proceeding was decided by this Tribunal and therefore, the observations and findings of the Tribunal in the quantum proceeding ought to have been considered while deciding the appeal against the penalty order. This Tribunal in the quantum relief has granted part relief to the assessee and therefore, the said order becomes relevant for deciding the pena....