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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
O R D E R Per Amarjit Singh (AM): The present appeal filed by the assesse is directed against the order passed by NFAC, Delhi dated 29.12.2022 for A.Y. 2018-19. The assesse has raised the following grounds before us: “1. The ld. CIT(A) erred in not appreciating the fact that the intimation issued by the Id AO CPC Bangalore w's 143(1) of the Income Tax Act, 1961 is erroneous / without jurisdiction since additions on issues where two views are possible cannot be made.
2. The ld. CIT(A) erred in confirming addition of Rs.1,59,10,546/- u/s 36(1)(va) of the Act without appreciating the fact that the employees contribution to PF and ESIC was deposited before the due date of filing of return.
3. The appellant prays that the adjustment made in the intimation order u/s143(1) of the Act may be deleted.
P a g e | Principle Security and Allied Services Pvt. Ltd. Vs. Circle 13(1)(2) 4. The appellant craves your honour's leave to add, alter or amend any ground of appeal at the time of hearing or before.”
The fact in brief is that assessee has deposited the employee’s contribution towards PF/ESIC to the government’s account beyond the due date prescribed in the PF/ESIC Act but before the due date of filing the return of income. The CPC Banglore processed the return of income u/s 143(1) and added the Rs.1,59,10,546/- on account of delay in deposit employee’s contribution to EPF & ESI beyond the due date as prescribed in the specified Act.
Aggrieved, the assesse filed the appeal before the ld. CIT(A). Before the ld. CIT(A) the assessee referred the decision of Hon’ble jurisdictional High Court in the case of Ghatge Patil Transport Ltd. (2015) 53 taxmann.com 141 (Bom) and the decision in the case of CIT Vs. Hind Filter Ltd.(2018) 90 taxmann.com 51 (Bom) and various other decisions. However, the ld. CIT(A) has dismissed the appeal of the assessee following the decision of the Hon’ble supreme Court in the case of Checkmate Services (P) Ltd Vs. CIT (2022) 43 taxmann.com 178 (SC). The ld. CIT(A) dismiss the appeal of the assesse. 4. During the course of appellate proceedings before us apart from the submission made before the ld. CIT(A), the ld. Counsel submitted that out of the amount of Rs.1,59,10,546/- disallowed by the CPC an amount of Rs.94,23,684/- was paid within the 15 days from payment of salary to the employees for financial year 2017-18 and unpaid amount of Rs.12,43,278/- had already been disallowed by the auditor which required to be considered by the Assessing officer. On the other hand, ld. D.R referred the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vide Civil Appeal No. 2833 of 2016 dated 12.10.2022 wherein it is held that