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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI BR BASKARAN, AM & SHRI ABY T. VARKEY, JM
O R D E R
PER ABY T. VARKEY, JM:
This is an appeal preferred by the assessee against the order of the Ld. CIT(A)/NFAC, Delhi dated 15.06.2022 for AY. 2020-21.
Even though in the first round we had allowed the appeal vide order dated 28.09.2022, the same has been recalled on 29.05.2023 in MA No. 216/Mum/2023. The only issue is regarding the disallowance confirmed by Ld. CIT(A) regarding employee’s contribution towards PF/ESI to the tune of Rs.16,92,251/-. 3. We have heard both the parties and perused the records. The CPC Bangalore processed the return of income u/s 143(1) Income Tax Act, 1961 (hereinafter “the Act”) and made adjustment of Rs.16,98,246/- u/s 36(1)(va) r.w.s. 2(24)(x) of the Act for late deposit of employee’s contribution to EPF/ESIC beyond the due date as prescribed in the specified Act (PF/ESIC Acts). The assessee has referred the decisions of Hon’ble Jurisdictional High Court in the case of Ghatge Patil Transport Ltd. (2015) 53 taxmann.com 141 (Bombay)
2 A.Y. 2020-21 M/s. Gulermak TPL Pune and in the case of CIT Vs. Hindustan Organics Chemical Ltd. (2014) 48 taxmann.com 421 (Bom) and various other decisions of other High Courts and Tribunals. However, we find that the case laws relied upon by the assessee cannot come to its aid, in the light of the judgment of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT (448 ITR 518). In this decision the Hon’ble Supreme Court held that for allowing the deduction such amounts (employee’s contribution to PF/ESIC) are deposited within the due date as prescribed in the specified Act in the relevant funds. If the employer/assessee fails to deposit the amount towards employee’s contribution on or before the due date as prescribed under the EPF/ESIC Act, the assessee was not entitled to the deduction. Therefore, unless the assessee is able to show that it has deposited the employee’s contribution towards PF/ESIC in the relevant fund within the due date as prescribed in the respective PF/ESIC Act, disallowance u/s 36(1)(va) of the Act as made by AO/Ld. CIT(A) need to be confirmed in accordance with the decision of Hon’ble Supreme Court in the case Checkmate Services Pvt. Ltd. Vs. CIT (448 ITR 518). Therefore, the appeal filed by the assessee is dismissed.