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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI AMIT SHUKLA, JM &
आदेश / O R D E R
Per Amit Shukla, Judicial Member:
The aforesaid appeal 29.12.2022 passed by NFAC Delhi for the assessment year 2018-19 in respective to adjustment made u/s. 143(1). In the grounds appeal assessee had challenged confirming
DOW CHEMICAL INTERNATIONAKL P.LTD the disallowance of Rs. 1,08,01,691/- made u/s. 36 (1)(a), made in the intimation u/s. 143(1) issued by CPC Bangalore.
The briefs in facts are that, the return of income for the AY: 2018-19 was filed on 30.11.2018, declaring total income of Rs. 367,39,85,270/-. The said return was processed and in the intimation issued u/s. 143(1), one of the disallowances made was of Rs. 1,08,01,691/- made u/s. 3615A for delayed payment of employees provident fund & ESI which were deposited after the due date prescribed under the respective Act and rule of PF & ESI but was before the due date of filing the return of income.
The Ld.CIT (A) following the judgment of Hon’ble Supreme Court in the case of checkmate services P.Ltd Vs. CIT reported in 2022 143 taxman.com 178, decided the issue against the Assessee.
Before us, the Ld. Counsel in additional ground stating under:
On the facts and in the circumstances of the case and in law, out of addition made of INR 1,08,01,691 under section 36(1)(va) of the Act, addition of amount of INR 99,08,357 should not have been made, being paid within the due date
DOW CHEMICAL INTERNATIONAKL P.LTD prescribed under the Employees Provident Fund and Miscellaneous Provisions Act. 5. He has also filed petition for admission of additional evidence and Rule 29 of ITAT rules, stating as under:
The tax auditor has made certain errors while reporting under clause 20(b) of TAR and hence there is an addition made in the intimation of INR 1,08,01,691 In order to bring the correct facts on record, the Appellant wishes to file certain documentary evidence towards proof of payment in respect of additions made. The details of payments made together with provident fund challans, receipt of payments and extracts of bank statement in support of payments are enclosed from Page 62 to 89 herewith. The Appellant through oversight missed noting errors made in tax audit report as based on certain judicial precedence, the addition of employees' contribution to provident funds was not sustainable under section 36(1)(va) if payment is made on or before the due date for filing the return. It is only after the order received from the Commissioner of Income-tax (Appeals), the Appellant has noted the said factual errors in tax audit report. In order to bring correct facts on records and for want of justice, the Appellant pray that this additional evidence be admitted and considered while deciding additional ground taken in this respect. This additional evidence is relevant to substantiate the additional grounds taken in the appeal. On the basis of additional evidence, the addition of INR 1,08,01,691 made in the intimation would reduce to INR 8,93,334 (i.e. INR 1,08,01,691 INR 99,08,357).
Thus, he submitted that the only disallowance which is called for in view of the judgment of Hon’ble Supreme Court in the case of checkmate services P.Ltd Vs. CIT reported in 2022 143 taxman.com 178, would worked out to Rs. 8,93,334/- as payment amounting Rs. 99,08,,357/- was made before the due date. In support he has filed following details of actual payments to the provident fund and the details even in the tax credit report.
Sr Salary TRRN Admin Employer Employee Total Date of Whether Income as . Month Charges Contribution Contribution Payment delayed per 36(1) N (Debited (va) o to Bank) 1. Apr-17 3191705007666 4,11,300 76,47,485 3,132 89,50,994 1,70,09,779 15-05-17 No - 216 3,75,007 3,007 15-05-17 No - 3191705007681 6,355 20,293 3,74,632 16-06-17 Yes 3,74,632 7,69,932 93,28,633 3191706007718 2. May- 3191706006378 4,11,125 76,44,233 90,11,455 1,70,66,813 14-06-17 No - 17 196 3,736 3,628 7,560 14-06-17 No - 3191706006400 20,404 3,77,073 3,76,698 7,74,175 16-06-17 Yes 3,76,698 3191706007701 7,692 1,42,154 1,42,004 2,91,850 14-09-17 Yes 1,42,004 3191707008904 31,998 5,95,152 6,09,977 12,37,127 01-06-17 No - 3101705022618 8,93,334 1,01,43,762 Less: Addition made under section 36(1) (va) For Apr 2017- 93,28,632 Fpr May2017- 14,73,059 1,08,01,691 Relief to be Granted 99,08,357
The aforesaid table shows that, most of the payments were made before due date. Accordingly, we admit the aforesaid
DOW CHEMICAL INTERNATIONAKL P.LTD evidences and remit this issue back to the back to the file of AO to verify to the payments and allow the ESI and payment which has been made on or before the due date.
Accordingly, appeal of the assessee is allowed for the statistical purposes.
Orders pronounced in the open court on 16th May, 2023.