ROSHAN LAL BOHRA,PALI vs. ADIT, CPC / ITO, WARD-2, PALI

1 ITA 12/JODH/2022 ROSHAN LAL BOHRA VS. ITO, WARD -2 , PALI

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR

BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER

ITA No. 12/ Jodh/22 (ASSESSMENT YEAR- 2019-20 ) Shri Roshan Lal Bohra Vs The ITO G-195(A), Mandia Road Ward-2 Industrial Area, Pali-Marwar Palai (Appellant) (Respondent) PAN NO. AATPB 8900 B

Shri Amit Kothari,CA Assessee By Shri Venkatesh V (JCIT-DR) Revenue By 31/10/2022 Date of hearing 2 /11/2022 Date of Pronouncement

O R D E R PER: SANDEEP GOSAIN, JM

This is an appeal filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 13-12-2021 for the assessment year 2019-20 raising therein following grounds of appeal.

2 ITA NO. 12/JODH/2022 ROSHAN LAL BOHRA VS. ITO, WARD 2, PALI (1) The ld. CIT(A), NFAC, Delhi erred in sustaining the addition on account of employees contribution to PF & ESI without considering that they were paid before the due date of filing the return of income. (2) The ld. CIT(A), NFAC, Delhi erred in holding that the amount paid beyond due date is income without considering the various case laws by various High Courts holding that the same is allowable . There are various High Court’s decision in favour of assessee. 2.1 Brief facts of the case are that the assessee is an individual and running a textile manufacturing business in the name of Mahaveer Fab Tex. The assessee filed his return of income on 21-10-2019 for the A.Y. 2019-20 which was processed and intimation u/s 143(1) dated 11-04-2020 was issued. The CPC, Bengalore while processing the return disallowed a sum of Rs.2,72,029/- on account of failure of the assessee to deposit employee’s contribution to PF/ESI. From the record, it is noticed that the payment was made before the due date of filing of the return as per Income Tax Act by the assessee.

2.2 In first appeal, the Ld. CIT(A) has confirmed the action of the AO by holding that the disallowance made u/s 36(1)(va) by the AO is confirmed. The assessee fails on this ground.

3 ITA NO. 12/JODH/2022 ROSHAN LAL BOHRA VS. ITO, WARD 2, PALI 2.3 During the course of hearing, the ld. AR prayed that the ld. CIT(A) erred in sustaining the addition of Rs.2,72,029/- in respect of employees contribution to PF and ESI which should be deleted.

2.4 On the other hand, the ld. DR relied on the order of the ld. CIT(A)

2.5 After hearing both the parties, it is noticed that the AO made the addition of Rs.2,72,029/- on account of late deposit of EPF & ESI contribution of the employee’s by the assessee in the light of provision of Section 2(24)(x) r.w.s. 36(1)(va) of the Act by holding it deemed income and subjected to tax in the hands of the employer which in first appeal was confirmed by the ld. CIT(A) holding that the said late payments are not covered under section 43B of the Act and thus the ld. CIT(A) dismissed this ground of the assessee. However, it is noted that the assessee has deposited employees contribution towards PF & ESI before due date of filing of return. Recently, the Hon’ble Supreme Court has in the case of Checkmate Services Pvt. Ltd. Vs CIT-1, 143 Taxmann.com 178 (SC)/Civil Appeal No. 2833 of 2016 held that the provision of Section 43B of the Act shall not apply to employee’s contribution to PF/ESI and the due date specified u/s 36(1)(va) of the Act shall apply for determination of deductibility of employee’s contribution to PF/ESI. Accordingly, in view of the aforesaid judgement of Hon’ble Supreme Court (supra), the issue being similar in nature is remanded back to the file of ld. CIT(A) for afresh adjudication by providing adequate opportunity of being heard to the assessee and the assessee is directed

4 ITA NO. 12/JODH/2022 ROSHAN LAL BOHRA VS. ITO, WARD 2, PALI to submit the necessary details/documents concerning the issue in question before the ld. CIT(A) in order to square up the case. Further, the assessee is also at liberty to take any other plea before the ld. CIT(A), if so advised. Thus the appeal of the assessee is allowed for statistical purposes.

3.0. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 2/11/2022 .

Sd/- Sd/- (B. R. BASKARAN) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated : 2 /11/2022 *Mishra Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR 6. Guard File

Assistant Registrar Jodhpur Bench