NINE STAR COMMODITIES PVT. LTD.,JODHPUR vs. A.O, WARD-6(1), KOLKATA

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ITA 263/KOL/2023Status: DisposedITAT Kolkata05 June 2023AY 2019-204 pages
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What did the Tribunal hold?

The tribunal dismissed the ground related to PF & ESI disallowance, citing Supreme Court precedent. However, it restored the issue of Section 43B disallowance to the Assessing Officer for verification of payment proof and auditor's certificate.

What were the facts?

The assessee appealed against the CIT(A)'s order confirming disallowances under Section 43B and for employees' contribution to PF & ESI. The disallowance for PF & ESI was confirmed as it was paid after the due date. The disallowance under Section 43B was due to an inadvertent error in the tax auditor's report.

What were the issues?

Whether delayed deposit of employees' contribution to PF is allowable if paid before the return filing due date. Whether a disallowance under Section 43B made due to an auditor's error can be rectified with proper documentation.

Which sections of the Income-tax Act were involved?

Section 43B,Section 36(1)(va),Section 2(24)(x),Section 139(1)

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Income Tax Appellate Tribunal, “SMC” BENCH, KOLKATA

Before: DR. MANISH BORAD, HON’BLE

For Appellant: Shri Subhas Agarwal, A/R
Hearing: 01/06/2023Pronounced: 05/06/2023

O R D E R

PER DR. MANISH BORAD, ACCOUNTANT MEMBER :

1.

This is the appeal preferred by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi (hereinafter referred to as the ld. CIT(A)”], passed u/s 250 of the Income-tax Act, 1961 (hereinafter the ‘Act’), dated 31/01/2023 for the Assessment Year 2019-20.

2.

The sole grievance of the assessee is that the ld. CIT(A) erred in confirming the disallowance made u/s 43B of the Act at Rs.3,91,525/- and disallowance of employees’ contribution to PF & ESI at Rs.6,037/- 3. We have heard rival contentions and perused the material placed before us. So far as the disallowance of PF & ESI of Rs.6,037/- is concerned raised in Ground No. 3 of this appeal, it is an admitted fact that the alleged sum was paid after the due date prescribed under Assessment Year: 2019-20 Nine Star Commodities Private Limited 2 the relevant Act. The Hon’ble Supreme Court in the case of Chekmate Services Pvt. Ltd. Vs. CIT (2022) 143 taxmann.com 178 (SC) has held that “deduction u/s 36(1)(va) in respect of delayed deposit of amount collected towards employees’ contribution to PF cannot be claimed when deposited within the due date of filing of return even when read with Section 43B of the Income-tax Act,1961.” Accordingly, the sum is not allowable u/s 36(1)(va) of the Act and is deemed to be income u/s 2(24)(x) of the Act. Accordingly, we dismiss this ground raised

by the assessee.

4. So far as Ground No. 2 regarding disallowance of Rs.3,91,525/- u/s 43B of the Act is concerned, we note that before the ld. CIT(A), the assessee has claimed that the alleged sum has been paid before the due date of furnishing of the return of income u/s 139(1) of the Act but in the tax auditor report, the tax auditor has inadvertently mentioned the said sum in the wrong column which is meant for those amounts which fall under the category of expenses mentioned u/s 43B of the Act but they are not paid before the due date of furnishing of return of income u/s 139(1) of the Act and are disallowable. Based on this observation, the CPC had made the said disallowance. However, all the alleged sum has been paid before the due date of furnishing of the return of income. But the ld. CIT(A), in the absence of the certificate from the auditor, did not allow the claim of the assessee. It was submitted before us by the ld. Counsel for the assessee that if an opportunity is granted, then, the assessee can file all relevant details including the copy of proof of payment and certificate from auditor

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