ATLAS TOURS & TRAVELS PRIVATE LIMITED,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 6(1)(2), MUMBAI, MUMBAI
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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES “E”, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER AND MS. KAVITHA RAJAGOPAL, JUDICIAL MEMBER ITA No. 210/Mum/2022 Assessment Year: 2019-20
Atlas Tours & Travels Private Limited Dy. Commissioner of Income Tax, 53, Ground Floor, Haji Mahal, Vs. Circle 6(1)(2) Mohammed Ali Road, Mumbai Mumbai-400 003 PAN : AACCA 7715 P (Appellant) Respondent)
Appellant By : Shri Gyaneshwar Kataram Respondent By : Ms. Richa Gulati
Date of Hearing : 25.05.2023 Date of Pronouncement : 31.07.2023
O R D E R Per Kavitha Rajagopal, J.M. This appeal has been filed by the assessee, challenging the order of the learned Commissioner of Income Tax (Appeal) (‘ld. CIT(A)’ for short) passed u/s. 250 of the Income Tax Act, 1961 (‘the Act’ for short) relevant to Assessment Year (A.Y. for short)
2019-20.
The solitary ground of appeal is the disallowance of ₹25,72,165/- made u/s. 2. 36(1)(va) of the Act pertaining to employees contribution to PF and ESIC deposited
belatedly after the due date prescribed under the relevant Act but before filing of the return of income.
2 ITA No. 210/Mum/2022 (A.Y. 2019-20) Atlas Tours & Travels Private Limited vs. Dy. CIT 3. The brief facts of the case are that the assessee company is engaged in the business
of travel agency, tour operators and foreign exchange dealers. The assessee company is
also engaged in the business of wind power, i.e., generation of electricity through wind
mill. The assessee company filed its return of income dated 29.09.2019, declaring total income at ₹1,36,95,880/- and the same was processed u/s. 143(1) of the Act. The A.O./CPC vide intimation dated 3.01.2020 made a disallowance of ₹25,72,165/- u/s.
36(1)(va) of the Act being the employees contribution towards PF & ESIC deposited
after the due date prescribed under the relevant Act.
The assessee was in appeal before the ld. CIT(A) challenging the impugned
disallowance who confirmed the addition /disallowance made by the A.O./CPC.
The assessee is in appeal before us, challenging the order of the ld. CIT(A).
We have heard the rival submissions and perused the materials available on
record. It is observed that the A.O./CPC had made the disallowance u/s. 36(1)(va) of the
Act on the employees contribution towards PF & ESIC which was deposited by the
assessee after the due date prescribed under the relevant Act but before filing of the
return of income.
The ld. Authorised Representative (‘ld. AR’ for short) contended that the lower
authorities have failed to consider the fact that the assessee had deposited the said PF on
or before the due date prescribed under the relevant Acts. The ld. AR brought our
attention to page no. 38 of the paper book where at Sr. Nos. 23 to 29, the assessee is said
3 ITA No. 210/Mum/2022 (A.Y. 2019-20) Atlas Tours & Travels Private Limited vs. Dy. CIT to have deposited the PF before the due date prescribed under the Act but the same was
overlooked by the lower authorities. The ld. AR prayed that the disallowance made
towards belated deposit of employee’s contribution to PF & ESIC has to be deleted if the
same was filed within the due date.
The ld. Departmental Representative (ld. DR for short), on the other hand,
controverted the said fact and stated that the lower authorities have rightly made the
disallowance. The ld. DR relied on the order of the lower authorities.
We have heard the rival submissions and perused the materials available on
record. It is observed that as the issue of allowability of employees contribution towards
PF & ESIC paid after the due date prescribed under the relevant Acts but before filing of
the returns was settled by the Hon’ble Apex Court in the case of Checkmate Services P
Ltd. vs. CIT (in Civil Appeal No. 2833 of 2016 vide order dated 12.10.2022). As this
issue is no longer res integra, we are inclined to follow the said proposition except for
remanding this issue to the file of the ld. A.O. for limited purpose of verifying the fact
whether the assessee has deposited the said amount towards employees contribution to PF
& ESIC within the due date specified under the relevant Act. It is also pertinent to point
out that clause 38 of the Employees Contribution Fund Scheme, 1952 fixes the time limit
for making the payments in respect of contribution to PF to be 15 days from the close of
the month concerned and the interpretation of ‘month’ in this has been held to be the
wage month and not the month when salary was disbursed. This has been reiterated in the
decision of the Hon’ble Madras High Court in the case of CIT vs. Madras Radiation and
4 ITA No. 210/Mum/2022 (A.Y. 2019-20) Atlas Tours & Travels Private Limited vs. Dy. CIT Processing Ltd. 264 ITR 620 (Mad) and has also been followed by the Tribunal in Creative Textile Mills Pvt. Ltd. vs. DCIT, CPC (in ITA No. 409/Mum/2022 vide order
dated 24.05.2022). The said matter was recalled by the Tribunal in Miscellaneous
Petition filed by the Revenue subsequent to the decision of the Hon’ble Apex Court in the
case of Checkmate Services P Ltd. vs. CIT (in Civil Appeal No. 2833 of 2016 vide order
dated 12.10.2022). We, therefore, remand this issue back to the file of the ld. A.O. for
limited purpose of verifying the fact whether the assessee has deposited the said amount
on or before the due date.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on this day of 31st July, 2023.
Sd/- Sd/-
(OM PRAKASH KANT) (KAVITHA RAJAGOPAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated : 31st July, 2023 Roshani, Sr. PS
Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The CIT(A), Mumbai. 4. The CIT 5. The DR, ‘B’ Bench, ITAT, Mumbai BY ORDER
//True Copy// (Assistant Registrar) Income Tax Appellate Tribunal, Mumbai
