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Income Tax Appellate Tribunal, “C” BENCH, CHENNAI
Before: HON’BLE SHRI V. DURGA RAO, JM & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
माननीय +ी वी. दुगा1 राव, "ाियक सद2 एवं माननीय +ी मनोज कुमार अ7वाल ,लेखा सद2 के सम9। BEFORE HON’BLE SHRI V. DURGA RAO, JM AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM आयकरअपीलसं./ (िनधा1रणवष1 / Assessment Year: 2012-13) M/s.Cognizant Technology Solutions ACIT India Pvt.Ltd. Central Circle-1(1), बनाम/ (Successor-in-interest of erstwhile Cognizant Chennai. Technology Services Pvt.Ltd.) Vs. 5/535, Okkiam Thoraipakkam Old Mahabalipuram Road,Chennai-600 096. "थायीलेखासं./जीआइआरसं./PAN/GIR No.AAACD-3312-M (अपीलाथ"/Appellant) : ("#थ" / Respondent) अपीलाथ"कीओरसे/ Appellant by : Shri N.V.Balaji(Advocate) – Ld.AR "#थ"कीओरसे/Respondent by : Shri P. Sajit Kumar (JCIT) – Ld.DR सुनवाईकीतारीख/Date of Hearing : 30-05-2023 घोषणाकीतारीख/Date of Pronouncement : 30-05-2023 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. The sole grievance of the assessee, in the captioned appeal, is disallowance made by Ld. AO u/s 36(v)(a) r.w.s. 2(24)(x) for late payment of EPF and ESI contributions aggregating to Rs.79.47 Lacs. The default has been tabulated by Ld. AO in opening para of the assessment order dated 27.11.2018 passed u/s 143(3) r.w.s. 263 of the Act. The fact that there is default in payment under respective acts, 2 remain undisputed before us. The Ld. CIT(A) has confirmed the disallowance by relying upon the recent decision of Hon’ble Supreme Court in bunch of appeals titled as Checkmate Services P. Ltd. Vs CIT (Civil Appeal No.2833 of 2016 dated 12.10.2022). Aggrieved, the assessee is in further appeal before us. The position that the aforesaid issue stood decided against the assessee by aforesaid decision is also undisputed.
The Ld. AR has referred to the decision of Cuttack Bench of Tribunal in ACIT vs. Sunila Sahu (MA No.23/CTK/2022 dated 13-01-2023) wherein the matter has been restored back to the file of lower authorities to examine the claim alternatively u/s 37(1). The Ld. AR has urged for similar directions which we are not inclined to accept since the disallowance is covered under specific Sec.36(1)(va) and therefore, the deduction could not be claimed alternatively under residuary Section 37(1). In our considered opinion, the provisions of Section 37(1) are residuary provisions. Any expenditure which falls within the ambit of Sec.30 to 36 and if it is found not to be fulfilling the conditions laid under those provisions, the same could not be claimed alternatively u/s 37(1). For the same reasons, the reliance of Ld. AR on the decision of Hon’ble High Court of Kerala in CIT vs. High Land Produce Co. Ltd. (102 ITR 803) as well as the decision of Hon’ble High Court of Gujarat in Khimji Visram & Sons (Gujarat) Pvt. Ltd. vs. CIT (79 Taxman 112) render no assistance to the case of the assessee considering the cited decision of Hon’ble Apex Court. In the result, the appeal stands dismissed.
Order pronounced on 30th May, 2023. (V. DURGA RAO) (MANOJ KUMAR AGGARWAL) "ाियक सद2/JUDICIAL MEMBER लेखासद2 / ACCOUNTANT MEMBER चे4ईChennai; िदनांकDated : 30-05-2023 DS 3 आदेशकीXितिलिपअ7ेिषत/Copy of the Order forwarded to : 1. अपीलाथ"/Appellant2. ""यथ"/Respondent 3. आयकरआयु"त/CIT4. "वभागीय""त"न"ध/DR 5. गाड"फाईल/GF