DURGA PUROHIT,UDAIPUR vs. ITO, WARD-2(1), UDAIPUR

O R D E R PER: SANDEEP GOSAIN, JM This is an appeal filed by the assessee against order of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 24-08-2022 for the assessment year 2020-21 raising therein solitary ground of appeal as under:-

DURGA PUROHIT VS ITO, WARD 2 (1), UDAIPUR 1. The appellant prays that the disallowance of Rs.2,23,895/- made u/s 43B on account of employees Contribution of Provident Fund, Superannuation Fund and ESI is bad in law and away from facts. 2.1 None appeared on behalf of the assessee when the case was called out for hearing. However, the Bench decided to dispose off the appeal on merit. Brief facts of the case are that the return for the assessment year 2020-21 was filed by the assessee on 6-01-2021 declaring total income of Rs.9,09,131/- which was processed by the CPC u/s 143(1) on 3-11-2021 by making disallowance of Rs.2,23,895/- on account of late credit of Employees Provident Fund. Subsequently, the assessee filed rectification request u/s 154 of the Act. Order u/s 154 of the Act was passed on 21-04-2022. In this case, it is noted from the record that the assessee had deposited the amount of Rs.2,23,895/- on 25-03- 2020 instead of 15-03-2020. There was delay of 10 days in depositing the amount on account of employees Contribution of Provident Fund, Superannuation Fund and ESI. However, the payment was made during the relevant financial year i.e. 2019-20 itself and well before due date of filing of ITR for A.Y. 2020-21. In first appeal, the ld. CIT(A), confirmed the disallowance made by the AO of Rs.2,23,895/- being contributions to PF.

DURGA PUROHIT VS ITO, WARD 2 (1), UDAIPUR 2.2 After hearing the ld. DR and perusing the materials available on record, it is noticed that the AO made the addition of Rs.2.23.895/- on account of late deposit of PF & 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, the Bench 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 in the appeal 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 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 DURGA PUROHIT VS ITO, WARD 2 (1), UDAIPUR 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 .