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Income Tax Appellate Tribunal, MUMBAI BENCH “E” MUMBAI
Before: SHRI ABY T VARKEY & SHRI OM PRAKASH KANT
These appeals are arising on account of Miscellaneous Application order dated 10.02.2023 passed by the Tribunal, recalling the order of Tribunal dated 14.06.2022. Since in both the appeals, grounds raised are common and therefore same were heard together and disposed off by way of this consolidated order
M/s Super Tiles And Marbles Pvt. Ltd. M/s Super Tiles And Marbles Pvt. Ltd. 2 & 1950/M/2021 ITA Nos. 1949 & 1950/M/2021 for convenience. The grounds raised in are convenience. The grounds raised in ITA No. 1949/M/2021 are convenience. The grounds raised in ITA No. 1949/M/2021 are reproduced as under: reproduced as under:
“Employees Provident Fund: Employees Provident Fund: a) On the fact and in the circumstances of the case and in law, a) On the fact and in the circumstances of the case and in law, a) On the fact and in the circumstances of the case and in law, the CIT(A) - 14 erred in disallowing payment made towards 14 erred in disallowing payment made towards Employees Contribution to P Employees Contribution to Provident Fund after specific due rovident Fund after specific due date of Rs. 4,42,200/ date of Rs. 4,42,200/-. b) Assessee has deposited the employees contribution to b) Assessee has deposited the employees contribution to b) Assessee has deposited the employees contribution to provident fund beyond the time period allowed under the PF provident fund beyond the time period allowed under the PF provident fund beyond the time period allowed under the PF Act, however, the said amounts were paid before the " due date Act, however, the said amounts were paid before the " due date Act, however, the said amounts were paid before the " due date " of filing of the " of filing of the return of income by the assessee us return of income by the assessee us - 139(1) of the Act which is in accordance to section 43B of the Act. the Act which is in accordance to section 43B of the Act. the Act which is in accordance to section 43B of the Act. c) On the facts and in the circumstances of the case and in law, c) On the facts and in the circumstances of the case and in law, c) On the facts and in the circumstances of the case and in law, CIT (A) - 14 erred in considering that context of the amendment 14 erred in considering that context of the amendment 14 erred in considering that context of the amendment to section - 43B woul 43B would be applicable to employee's contribution d be applicable to employee's contribution as well as employer's contribution. as well as employer's contribution. However, the assessee has relied on the judgements which However, the assessee has relied on the judgements which However, the assessee has relied on the judgements which observed and allowed both the employees and employers observed and allowed both the employees and employers observed and allowed both the employees and employers contribution would be covered the amendment to Section contribution would be covered the amendment to Section contribution would be covered the amendment to Section - 43B of the Income Tax Act, 1961. Therefore, assessee pray for the e Income Tax Act, 1961. Therefore, assessee pray for the e Income Tax Act, 1961. Therefore, assessee pray for the deletion of the Addition made of Rs. 4,42,200/ deletion of the Addition made of Rs. 4,42,200/- made by CIT (A) made by CIT (A) - 14 Mumbai u/s 14 Mumbai u/s - 250 of the Income Tax Act, 1961. 250 of the Income Tax Act, 1961. At the outset, we may like to mention that despite notifying 2. At the outset, we may like to mention that despite notifying At the outset, we may like to mention that despite notifying neither anyone atten neither anyone attended on behalf of the assessee nor any ded on behalf of the assessee nor any adjournment was sought was sought. In the facts and circumstances of the . In the facts and circumstances of the of the opinion that assessee is not interested in case, we were of the opinion that assessee is not interested in of the opinion that assessee is not interested in prosecuting the appeal and therefore, same was heard ex-partee prosecuting the appeal and therefore, same was heard prosecuting the appeal and therefore, same was heard hearing the Ld. Departmental qua qua the the assessee, assessee after hearing the Ld. Departmental Representative (DR).
M/s Super Tiles And Marbles Pvt. Ltd. M/s Super Tiles And Marbles Pvt. Ltd. 3 & 1950/M/2021 ITA Nos. 1949 & 1950/M/2021
We find that in the case, the Assessing Officer We find that in the case, the Assessing Officer We find that in the case, the Assessing Officer , Central Processing Center ( CPC), in the intimation order passed u/s 143(1) Processing Center ( CPC), in the intimation order passed u/s 143(1) Processing Center ( CPC), in the intimation order passed u/s 143(1) of the Income-tax Act, 1961 (in short ‘the Act’), made adjustment / tax Act, 1961 (in short ‘the Act’), made adjustment / tax Act, 1961 (in short ‘the Act’), made adjustment / disallowed the employee ed the employee’s contribution to ESI/PF made after due s contribution to ESI/PF made after due date under the relevant date under the relevant Acts. On further appeal, , The Ld. CIT(A) dismissed the appeal observing as under: dismissed the appeal observing as under:
“7. Under these circumstances and following the clarificatory 7. Under these circumstances and following the clarificatory 7. Under these circumstances and following the clarificatory amendments made by the Finance Ac amendments made by the Finance Act, 2021 to section t, 2021 to section 36(1)(va) and section 43B, the contentions made in the 36(1)(va) and section 43B, the contentions made in the 36(1)(va) and section 43B, the contentions made in the submissions are not found acceptable and the additions of Rs. submissions are not found acceptable and the additions of Rs. submissions are not found acceptable and the additions of Rs. 4,42,2001-made by AQ, CPC for not deposing of employee's made by AQ, CPC for not deposing of employee's made by AQ, CPC for not deposing of employee's contribution to the PF and ESIC covered under section 36(1)(va) contribution to the PF and ESIC covered under section 36(1)(va) contribution to the PF and ESIC covered under section 36(1)(va) rws 2(24)(x) of «the Act" but paid to the respective funds after rws 2(24)(x) of «the Act" but paid to the respective funds after rws 2(24)(x) of «the Act" but paid to the respective funds after the due dates as specified by rules of relevant funds are the due dates as specified by rules of relevant funds are the due dates as specified by rules of relevant funds are correctly correctly correctly held held held as as as deemed deemed deemed income income income and, and, and, therefore, therefore, therefore, the the the disallowance is hereby confirmed as the said late payments disallowance is hereby confirmed as the said late payments disallowance is hereby confirmed as the said late payments are not covered under are not covered under 43B of the Act.Accordingly, these 43B of the Act.Accordingly, these grounds of appeal are dismissed. grounds of appeal are dismissed.” 3.1 Though this appeal was allowed by the ITAT vide order dated Though this appeal was allowed by the ITAT vide order dated Though this appeal was allowed by the ITAT vide order dated 14.06.2022, however in view of the decision of the Hon’ble Supreme however in view of the decision of the Hon’ble Supreme however in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. v. CIT reported in Court in the case of Checkmate Services Pvt. Ltd. v. CIT Court in the case of Checkmate Services Pvt. Ltd. v. CIT 143 taxmann.com 178 143 taxmann.com 178, the same was recalled.
4. In the grounds raised, the assessee has challenged the In the grounds raised, the assessee has challenged the In the grounds raised, the assessee has challenged the disallowance in the view of the earlier decisions and judgment disallowance in the view of the earlier decisions and judgment disallowance in the view of the earlier decisions and judgment where both the employee and employer contribution were held to be where both the employee and employer contribution were held to be where both the employee and employer contribution were held to be subjected to section 43B of the Act. However, Hon’ble Supreme to section 43B of the Act. However, Hon’ble Supreme to section 43B of the Act. However, Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra) has Court in the case of Checkmate Services Pvt. Ltd. (supra) has Court in the case of Checkmate Services Pvt. Ltd. (supra) has clearly held that employee clearly held that employee’s contribution to PF/ESI is subject to s contribution to PF/ESI is subject to M/s Super Tiles And Marbles Pvt. Ltd. M/s Super Tiles And Marbles Pvt. Ltd. 4 & 1950/M/2021 ITA Nos. 1949 & 1950/M/2021 provision of section 36(1)(va) of the Act and the provision of section 36(1)(va) of the Act and therefore, any payment fore, any payment made after due date under the relevant Act is not ter due date under the relevant Act is not ter due date under the relevant Act is not eligible as deduction for the purpose of Income deduction for the purpose of Income-tax Act. We further note that tax Act. We further note that in view of decision of the Hon’ble Supreme Court (supra), the claim in view of decision of the Hon’ble Supreme Court (supra in view of decision of the Hon’ble Supreme Court (supra of deduction is an incorrect claim and which is apparent from the incorrect claim and which is apparent from the incorrect claim and which is apparent from the information in the return and therefore, same is liable to be nformation in the return and therefore, same is liable to be nformation in the return and therefore, same is liable to be disallowed or to be adjust adjusted u/s 143(1)(a)(ii) of the Act. In view of u/s 143(1)(a)(ii) of the Act. In view of the above discussion, the grounds raised by the assessee are the above discussion, the grounds raised by the assessee are the above discussion, the grounds raised by the assessee are accordingly dismissed. accordingly dismissed.
5. The grounds raised in the The grounds raised in the ITA No. 1950/M/2021 are identical 0/M/2021 are identical and therefore, same are decided mutatis mutandis. and therefore, same are decided mutatis mutandis.
In the result, the appeals of the assessee are dismissed.
In the result, the appeals of the assessee are dismissed. In the result, the appeals of the assessee are dismissed. Order pronounced in the open Court on Order pronounced in the open Court on 26/0 04/2023. Sd/- Sd/ Sd/- (ABY T VARKEY ABY T VARKEY) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT Mumbai; Dated: 26/04/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to :
1. 1. The Appellant 2. The Respondent.
3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy//
M/s Super Tiles And Marbles Pvt. Ltd. M/s Super Tiles And Marbles Pvt. Ltd. 5 & 1950/M/2021 ITA Nos. 1949 & 1950/M/2021