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Income Tax Appellate Tribunal, MUMBAI BENCH “B” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
This appeal by the assessee is directed against order dated 23.11.2021 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2018-19, raising following grounds:
“1) In the facts and circumstances of the case and in law the Assessing Officer (CPC) erred in adding Rs. 5,43,8007- on account of alleged delay in payment towards Provident Fund, ESIC and any Other Welfare
P a g e | Babubhai Jagjivandas Fund u/s 36(l)(va) r.w.s 43B and 2(24)(x) of the Act thereby a) Disregarding the case laws of Bombay High Court and Supreme Court etc. b) Making adjustment u/s 143(1) which is not permissible because the same are not prima facie adjustment as per various judgements of High Court and Supreme Court. c) By overlooking the fact that even though the same is paid on or before due date of filing of return. 2) In the facts and circumstances of the case and in law, the Commissioner of Income tax (Appeals), NFAC also erred in confirming the disallowance of Rs. 5,43,8007- on account of alleged delay in payment towards Provident Fund, ESIC and any Other Welfare Fund u/s 3 6(l)(va)r.w.s 43 B and 2(24)(x) of the Act. - a) By disregarding the judgement of Jurisdictional High Court of Bombay in the case of Ghatge Patil Transports Ltd. 368 ITR.749. and Hind Filter Ltd 90 taxmann.com 51 (Bombay) and Alom Extrusions Ltd. [2009] 319 ITR 306 (SC). b) By disregarding the fact that the judgemenfof Jurisdictional High Court is binding even in faceless appeal and assessment as per the order of Mahadev Cold Storage 127 taxmann.com 722 (Agra) I which it is held that, "Though Centralized NFAC has been created by Notification by CBDT, it should be ensured that whenever any appellate order is passed by NFAC as per Notification either by way of draft or Final appellate order, then decision of Jurisdictional High Court having jurisdictionover Assessing Officer should be followed and applied by NFAC. Merely becausethere is some conflicting decision of non-jurisdictional High Court, relief should not be refused to assessee c) By disregarding the fact that the amendment made to section 36(1)(va) by the Finance Act, 2021 is not retrospective as is recently held in the case of M/s Crescent Roadways Private Limited (ITA No. 1952/Hyd/2018).
P a g e | Babubhai Jagjivandas [C] Relief Prayed The appellant therefore prays follows, 1. To delete the disallowance of Rs.5,43,800/- on account of alleged delay in payment towards Provident Fund, ESIC and any other welfare fund made u/s 36(1)(va) r.w.s. 43B and 2(24)(x) of the Act."
This appeal was heard and pronounced by the Tribunal on 06.05.2022, wherein the appeal of the assessee was allowed. However, subsequently on Miscellaneous Application filed by the Revenue, the Tribunal vide order dated 13.04.2023 in MA No. 61/Mum/2023 has recalled the appeal and hence the appeal came before us for hearing and adjudication.
At the outset, we may like to mention that despite notifying for the hearing neither anyone attended on behalf of the assessee nor any adjournment was filed and therefore, we are of the opinion that the assessee is not interested in prosecuting this appeal, hence same was heard ex-parte qua the assessee after hearing the arguments of the Ld. Departmental Representative (DR).
We find that in the case issue in dispute is of employee’s contribution to Provident Fund/Employees State Insurance deposited after the due date under the relevant Act. The Ld. CIT(A) in view of amendment to section 36(1)(va) confirmed the addition of Rs.5,43,802/-. Before us, in the grounds raised the assessee has challenged the decision of the Ld. CIT(A) mainly on the ground that the Ld. CIT(A) has disregarded the judgment of jurisdictional High Court of Bombay in the case of Ghadge Patil Transport Limited 368
P a g e | Babubhai Jagjivandas ITR 749 (Bombay) and Alom Extrusions Limited 319 ITR 306 (SC). The assessee has further challenged the addition on the ground that amendment made section 36(1)(va) of the Act by the Finance Act, 2021 is not retrospective as held in the case of M/s Crescent Roadways Pvt. Ltd. (ITA No. 1952/Hyd/2018).
4.1 We find that the issue of deductibility of employee’s contribution to PF/ESI deposited after the due date under the relevant Act has been decided by the Supreme Court in the case of Checkmate Services Pvt. Ltd. v. CIT reported in 143 taxmann.com 178, which being law of the land, is a binding precedent. Therefore, the grounds raised by the assessee are rejected and finding of the Ld. CIT(A) on the issue in dispute is upheld. The grounds raised by the assessee are accordingly, dismissed.
In the result, the appeal filed by the assessee is dismissed.