APCER LIFE SCIENCES INDIA LIMITED,MUMBAI vs. ASSESSING OFFICER, NATIONAL E-ASSESSMENT CENTRE, MUMBAI
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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI PRASHANT MAHARISHI, AM & MS. KAVITHA RAJAGOPAL, JM
IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI
BEFORE SHRI PRASHANT MAHARISHI, AM AND MS. KAVITHA RAJAGOPAL, JM ITA No. 2882/Mum/2022 (Assessment Year: 2018-19)
Apcer Life Sciences India Limited Assessing Officer G-040, Vikas Centre, 104, S V Road, National E-Assessment Centre, Vs. Santacruz (W), Mumbai-400 054 Delhi
PAN/GIR No. AAHCA 6482 E (Appellant) (Respondent) :
Assessee by : Shri M. Subramanian Revenue by : Shri Manoj Kumar Sinha
Date of Hearing : 02.03.2023 Date of Pronouncement : 31.05.2023
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 (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal
Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'),
pertaining to the Assessment Year (‘A.Y.’ for short) 2018-19.
The assessee has challenged the disallowance of Rs.40,91,032/- which is the
delayed deposits towards PF & ESI u/s. 36(1)(va) r.w.s. 43B of the Act on the ground
that the said provision was prospective in nature and applicable to A.Y. 2021-22. The
assessee has also challenged the disallowance of Rs.35,80,210/- u/s. 115BBE of the Act.
The assessee is said to have raised the additional grounds vide its submission stating that
the computation sheet dated 19.04.2021, computing the income at Rs.11,93,40,332/- is
2 ITA No. 2882/Mum/2022 (A.Y. 2018-19) Apcer Life Sciences India Limited vs. Assessing Officer invalid and bad in law along with the demand notice issued on 19.04.2021 u/s. 156 of the
Act. The assessee has also raised the additional grounds which are consequential in
nature.
The brief facts of the case are that the assessee is a private limited company
engaged in the business of pharma co-vigilance services and monitoring the effect of
drug, medical review of lab and ECG data, global medical writing, etc. The assessee filed
its return of income dated 21.11.2018, declaring total income at Rs.11,52,49,300/-. The
return was processed u/s. 143(1) of the Act and the assessee’s case was selected for
scrutiny and the assessment order dated 19.04.2021 was passed u/s. 143(3) r.w.s. 144B of
the Act, accepting the returned income filed by the assessee. It is observed that the
demand notice and the computation sheet was issued separately along with the
assessment order and credit of all prepaid taxes were given as per the provisions. The
assessee observed that the assessee had filed its return declaring total income at
Rs.11,52,49,300/- in the computation sheet, whereas the A.O. has computed the taxable
total income at Rs.11,93,40,332/- with a difference of Rs.40,91,032/- higher than the total
taxable income as per the return of income filed by the assessee. The assessee further
contended that the A.O. has not mentioned about the impugned disallowance at the time
of processing the ITR u/s. 143(1) of the Act.
The assessee was in appeal before the ld. CIT(A), challenging the impugned
disallowance u/s. 36(1)(va) of the Act and in computing the tax of Rs.35,80,210/- as
additional tax u/s. 115BBE of the Act. The ld. CIT(A) confirmed the impugned
disallowance on the ground that the assessee has deposited the employees contribution
3 ITA No. 2882/Mum/2022 (A.Y. 2018-19) Apcer Life Sciences India Limited vs. Assessing Officer towards PF & ESI after the due date prescribed under the relevant Acts. The ld. CIT(A)
also confirmed the addition on deemed income u/s.115BBE of the Act of Rs.35,80,210/-
on the ground that the assessee has failed to furnish a complete copy of the AO/CPC’s
order u/s. 143(1) of the Act inspite of several opportunities and the ld. CIT(A) also held
that the assessee has failed to furnish the copies of the judgments relied upon by the
assessee on this issue.
The assessee is in appeal before us, challenging the impugned order of the ld.
CIT(A).
The assessee filed the additional grounds stating that the computation sheet dated
19.04.2021 was invalid and the demand notice u/s. 156 of the Act was issued consequent
to the computation sheet was also invalid and bad in law along with the other
consequential grounds raised. The assessee contends that the additional ground raised by
it goes to the root of the matter, the same has to be admitted by placing reliance on the
decision of the Hon'ble Apex Court in the case of National Thermal Power Co. Ltd. vs.
CIT [1998] 229 ITR 383 (SC).
On hearing both the sides, we are of the considered view that the additional
ground raised by the assessee has to be admitted for the purpose of proper adjudication of
the present case. Hence, we hereby admit the additional grounds raised by the assessee.
We first take up the additional ground raised by the assessee challenging the
computation sheet dated 19.04.2021 raised in the additional ground nos. 1, 2 & 3 of the
assessee submission. The learned Authorised Representative (ld. AR for short) for the
assessee contended that the return of income filed by the assessee was accepted by the
4 ITA No. 2882/Mum/2022 (A.Y. 2018-19) Apcer Life Sciences India Limited vs. Assessing Officer A.O. in the assessment order dated 19.04.2021. The ld. AR further stated that the assessee
has claimed certain refunds and had declared total income of Rs.11,52,49,300/- in its
return of income whereas at pg. no. 26 of the computation sheet, the A.O. has determined
the total income at Rs.11,93,40,332/- with a difference of Rs.40,91,032/-. The ld. AR
contended that the A.O. has not made any disallowance to this extent in his assessment
order and since there was no explanation in the assessment order to that extent, the
computation sheet has to be declared as ‘invalid’ and ‘bad in law’.
The learned Departmental Representative (ld. DR for short) for the Revenue, on
the other hand, controverted the said fact and 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 the assessee for the first time has raised this plea before us
which was not taken before the first appellate authority. The ld. CIT(A) has specifically
mentioned that the assessee has made delayed deposits of employees contribution to PF
& ESI aggregating to Rs.40,91,032/- as evident from the column 20(b) of the audit report
as well as the CPC/A.O.’s intimation u/s. 143(1) of the Act that the impugned
disallowance was towards delayed deposits of employees contribution towards PF & ESI,
which were said to be deposited after due date specified under the relevant Acts and but
before the due date of filing of the returns u/s. 139(1) of the Act. This issue is no longer
res integra as the same is covered by the decision of the Hon'ble Apex Court in the case
of Checkmate Services (P) Ltd. vs. CIT [2022] 448 ITR 518 (SC), wherein it was held
that the delayed payment of employees contribution towards PF & ESI, if the same was
paid after the due date specified under the relevant act inspite of the same being paid
5 ITA No. 2882/Mum/2022 (A.Y. 2018-19) Apcer Life Sciences India Limited vs. Assessing Officer before the due date of filing of the returns u/s. 39(1) of the Act. Hence, we find no merit
in the submission of the ld. AR in this regard. We also do not find any merit in the
contention raised by the assessee that the computation sheet is invalid in law when there
is no explanation by the A.O. pertaining to the impugned disallowance in the assessment
order. The disallowance made in section 143(1) by the CPC/A.O. is justifiable in our
view. We find no infirmity in the order of the ld. CIT(A) in upholding the impugned
disallowance. Further, we find merit in the submission of the ld. AR in stating that the
impugned disallowance also pertains to the employer’s contribution u/s. 43B of the Act.
The ld. AR contended that the employees contribution in this was only to the extent of Rs.19,19,454/- which was paid on 16th April as 15th April falls on a Sunday. To this
limited issue, we remand this to the file of the A.O. for verifying the fact that the
impugned payment was made on or before the due date and is also remanded for
bifurcating employers and employees contribution towards PF & ESI. Hence, the
additional ground nos. 1, 2 & 3 and the regular ground nos. 1 & 2 are allowed for
statistical purposes.
Ground no. 3 of the regular ground and ground no. 4 of the additional ground
pertains to the additional tax of Rs.35,80,210/- u/s. 115BBE of the Act. The ld. AR
contends that section 115BBE of the Act applies only when section 68, 69, 69A, 69B,
69C & 69D of the Act are invoked. The present case in hand does not come under the
mandate of section 115BBE of the Act and, hence, we find merit in the submission made
by the ld. AR on this issue. We, therefore, direct the A.O. to delete the impugned addition
made u/s. 115BBE of the Act. This ground of appeal raised by the assessee is allowed.
6 ITA No. 2882/Mum/2022 (A.Y. 2018-19) Apcer Life Sciences India Limited vs. Assessing Officer 12. The other additional grounds raised by the assessee are consequential in nature.
In the result, the appeal filed by the assessee is partly allowed.
Order pronounced in the open court on 31.05.2023.
Sd/- sd/-
(Prashant Maharishi) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : Roshani, Sr. PS
Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER,
(Dy./Asstt. Registrar) ITAT, Mumbai
