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Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Dr. Manish Borad
Per Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 12.12.2022 passed for A.Y. 2018-19.
Though the assessee has taken three grounds of appeal, but his grievances revolve around a single issue, namely ld. CIT(Appeals) has erred in confirming the disallowance of Rs.4,78,711/-, which was disallowed by the ld. Assessing Officer with the aid of section 36(1)(va) of the Income Tax Act.
With the assistance of ld. Representatives, we have gone through the record carefully. In the return of income, the auditor of the assessee has committed an error by mentioning the due date for making the payment of employees’ and employer’s contribution towards the Provident Fund Account and accordingly ld. Assessing Officer has disallowed the Provident Fund payments, which according to him, were paid after the expiry of due date.
Dissatisfied with this disallowance, the assessee carried the matter in appeal before the ld. CIT(Appeals). It contended that the assessee’s case is to be examined under the Coal Mines Provident Fund Scheme, Government of India, Ministry of 2
ITA No. 734/KOL/2022 Assessment Year: 2018-2019 Mrityunjay Kumar Singh Labour, Notification dated 11th December, 1948 and in this Rules under Rule 33A, Sub-Rule (2), the due date is last date of the next month in which the payment was received. The assessee has brought it to the notice of ld. CIT(Appeals) that there is no lapse for making the payments. These payments have been made within the due date. A written submission to that effect was filed before the ld. CIT(Appeals), which is available at pages no. 2 to 3 and such submission reads as under:-
ITA No. 734/KOL/2022 Assessment Year: 2018-2019 Mrityunjay Kumar Singh
Ld. Counsel for the assessee drew our attention towards Coal Mines Provident Fund Scheme and took us through Sub- Rule (2) of Rules 33A. Such rules read as under:-
“33A. Mode of payment of contribution for any period of currency commencing on or after the 1st April, 1953- Payment in cash- (1) Every contribution payable under this Scheme during a period of currency commencing at any time on or after the 1st April, 1953 shall be paid monthly in respect of each colliery separately on or before the date specified the sub-paragraph (2). The contributions shall be 4
ITA No. 734/KOL/2022 Assessment Year: 2018-2019 Mrityunjay Kumar Singh calculated – [as provided in this Scheme) for all wage periods ending in a month.
(2) The employer shall pay to the Fund both the employer’s contribution as well as the member’s contribution together with an amount [calculated at the rates mentioned in paragraph 33B of this Scheme] to defray the cost of administration of the Fund on or before the last day of every month following the month to which the contributions relate”.
On the strength of the above, he submitted that there is no lapse on the part of the assessee. Payments were made within the due date and, therefore, even after the Hon’ble Supreme Court decision dated 12.10.2022 in the case of Checkmate Services Pvt. Limited –vs.- CIT (Civil Appeal No. 2833 of 2016), no disallowance is to be made with regard to Rs.4,78,711/- (details are extracted above).
Ld. Sr. D.R., on the other hand, contended that the assessee should have corrected its audit report and should have submitted the requisite details.
We have duly considered the rival contentions and gone through the record carefully. We find that the ld. 1st Appellate Authority has blindly concurred with the ld. Assessing Officer without examining the details of actual payment. He just harped upon the audit report in which the factual error crept at the end of the auditor.
ITA No. 734/KOL/2022 Assessment Year: 2018-2019 Mrityunjay Kumar Singh Once a point is being raised by the assessee in an appeal with the help of relevant material demonstrating the factual error, the ld. CIT(Appeals) is bound to cross verify such facts and adjudicate the issue on merit. After going through the order of ld. CIT(Appeal), we are satisfied that ld. CIT(Appeals) failed to appreciate the controversy in true perspective inspite of bringing all relevant material facts. Taking into consideration the Rules of Coal Mines Provident Fund Scheme extracted supra and the actual payments made by the assessee within the due date, we are of the view that there is no lapse at the end of the assessee for claiming the deduction of this amount. Accordingly we allow the appeal of the assessee and delete the disallowance.
In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 1st February, 2023. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 1st day of February, 2023 (1) Mrityunjay Kumar Singh, Copies to : 1, R.N. Mukherjee Road, 3rd Floor, Room No. 324, Kolkata-700001 (2) Income Tax Officer, Ward-23(1), Hooghly, 6
ITA No. 734/KOL/2022 Assessment Year: 2018-2019 Mrityunjay Kumar Singh Chinsurah, Hooghly-712101 (3) Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi; (4) Commissioner of Income Tax- ; (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.