ACME INDUSTRIES,BHILWARA vs. ACIT, CIRCLE, BHILWARA

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR

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

ITA No. 25 & 26/Jodh/22 (ASSESSMENT YEAR- 2018-19 & 2019-20) M/s.Acme Industries Vs The ACIT Khasra No. 111, Village:Raipur Circle Tehsil: Roorkee, Bhilwara Bhagwanpur 247 661 (Uttrakhand) (Appellant) (Respondent) PAN NO. AATFA 1164 G

Assessee By Shri Rajendra Jain, Advocate Revenue By Shri Venkatesh V (JCIT-DR) Date of hearing 01/11/2022 Date of 2 /11/2022 Pronouncement

O R D E R PER: SANDEEP GOSAIN, JM

Both these appeals have been filed by the assessee against two different orders of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 25-11-2021& 01-10-2021 for the assessment years 2018-19 & 2019-20 respectively raising therein following grounds of appeal.

2 ITA NO. 25/JODH/2022 ACME INDUSTRIES VS ACIT, CIRCLE, BHILWARA ITA NO. 25/JODH/2022 – A.Y. 2018-19

(1) That on the facts and in the circumstances of the case, the ld. CIT(A), NFAC has grossly erred in violating the principles of faceless appeal as announced for justice of honest taxpayers to avoid litigation as created unnecessary by AO.

(2) That on the facts and in the circumstances of the case the ld. CIT(A) erred in upholding the validity of order passed by the AO u/s 154 of the Act. (3) That on the facts and in the circumstances of the case, ld. CIT(A) grossly erred in consciously and deliberately highly disregarding the decision of Hon’ble Jurisdictional High Court. (4) That on the facts and in the circumstances of the case the ld. CIT(A) grossly erred in sustaining addition of Rs.3,41,040/- in respect of employees contribution to ESI & PF. (5) That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in holding that amendment in Section 36(1)(va) and Section 43B by Finance Act, 2021 will be applicable in the case of assessee. (6) That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in recording irrelevant finding in the order and thereby sustaining arbitrary addition in a hypothetical way by putting the assessee to erroneous harassment and inconvenience. ITA NO. 26/JODH/2022 – A.Y. 2019-20 (1) That on the facts and in the circumstances of the case, the ld. CIT(A), NFAC has grossly erred in violating the principles of faceless appeal as announced for justice of honest taxpayers to avoid litigation as created unnecessary by AO.

(2) That on the facts and in the circumstances of the case the ld. CIT(A) erred in upholding the validity of order passed by the CPC u/s 143(1) of the Act. (3) That on the facts and in the circumstances of the case, ld. CIT(A) grossly erred in consciously and deliberately highly disregarding the decision of Hon’ble Jurisdictional High Court. (4) That on the facts and in the circumstances of the case the ld. CIT(A) grossly erred in sustaining addition of

3 ITA NO. 25/JODH/2022 ACME INDUSTRIES VS ACIT, CIRCLE, BHILWARA Rs.2,26,654/- in respect of employees contribution to ESI & PF. (5) That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in holding that amendment in Section 36(1)(va) and Section 43B by Finance Act, 2021 will be applicable in the case of assessee. (6) That on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in recording irrelevant finding in the order and thereby sustaining arbitrary addition in a hypothetical way by putting the assessee to erroneous harassment and inconvenience. 2.1 During the course of hearing, the Bench observed that there is delay of 36 days and 91 days in filing the above mentioned appeals respectively by the assessee for which the ld. AR of the assessee has submitted that because of COVID-19 pandemic, the appeal could not be filed in time. However, the Hon’ble Supreme Court vide its order dated 10-01-2022 excluded the period starting from March 15, 2020 till Feb. 28, 2022 for the purposes of limitation. Hence, the ld. AR of the assessee prayed to condone the delay for which the ld. DR did not raise any objection. In this view of the matter, the delay is condoned. 3.1 First of all, we take up the appeal of the assessee for the assessment year 2018-19 for adjudication. Brief facts of the case are that the assessee e-filed the ITR on 25-09-2018 declaring total income at Rs.27,75,370/-. Order u/s 143(1) was passed on 16-10-2019 at assessed income of Rs.30,12,403/- and raised demand of Rs.91,910/-. The assessee filed the rectification application u/s 154 of the Act which was rejected by the ACIT, Circle-Bhilwara vide his order

4 ITA NO. 25/JODH/2022 ACME INDUSTRIES VS ACIT, CIRCLE, BHILWARA darted 08-07-2020. From the record, the Bench noted that the main issue in this appeal is regarding sustaining the addition of Rs.3,41,040/- under section 36(1)(va) r.w.s. 2(24)(x) of the Act for late deposit of employee’s contribution to EPF and ESI under the respective Act by the assessee. However, in first appeal, the ld. CIT(A) has dismissed the appeal of the assessee. 3.2 During the course of hearing, the ld. AR prayed that the ld. CIT(A) erred in sustaining the addition of Rs.3,41,040/- in respect of employees contribution to PF and ESI which should be deleted. 3.3 On the other hand, the ld. DR relied on the order of the ld. CIT(A) 3.4 After hearing both the parties, it is noticed that the AO made the addition of Rs.3,41,040/- 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

5 ITA NO. 25/JODH/2022 ACME INDUSTRIES VS ACIT, CIRCLE, BHILWARA 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 both the appeals being similar in nature are 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 at liberty to take any other plea before the ld. CIT(A), if so advised. Thus both the appeals of the assessee are allowed for statistical purposes. 4.0. In the result, the appeals of the assessee are 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) Asstt. Registrar 5. The DR 6. Guard File Jodhpur Bench