DCIT, CIRCLE-3(1), HYDERABAD vs. R S BROTHERS RETAIL INDIA PVT LTD, HYDERABAD

There is a delay of 49 days in filing of this appeal by the Revenue for which the Revenue has filed a condonation petition. After considering the contents of the condonation application explaining the reasons for such delay and after hearing the learned Counsel for the assessee, the delay in filing of this appeal by the Revenue is condoned and the appeal is admitted for adjudication.

The only effective ground raised by the Revenue reads as under: “Whether on the facts and circumstances of the case and in law, the learned CIT (A), NFAC is correct in deleting the disallowances made on account of non-deposition of employee’s contribution towards PF & ESI before the prescribed due dates under the relevant acts in the light of the express provisions of section 2(24)(x) r.w.s. 36(1)(va) of I.T. Act, 1961.”

Facts of the case, in brief, are that the assessee is a company and filed its return of income on 26.9.2019 declaring total income of Rs.36,49,56,410/-. The return of income was processed u/s 143(1) by the CPC wherein an amount of Rs.2,86,15,909/- was added being delayed remittances of Employees’ contribution to PF & ESI. The CPC Bengaluru accordingly determined the total income of the assessee at Rs.39,35,72,320/-.

Before the CIT (A)-NFAC, it was submitted that while uploading the tax audit report, the details of date of payment was wrongly entered in due date column and the due date of the remittance was wrongly entered in the date of payment column by mistake. Due to the said mistake while processing the return of income, the system calculated the delay in remittance of Employees’ contribution to PF & ESI at Rs.2,86,15,909/- instead of Rs.10,03,682/- which is the amount due to delay in remittance. However, it was submitted that the contributions were remitted before filing of the return of income.

Based on the argument advanced by the assessee, the CIT (A)-NFAC, relying on various decisions, held that since the payments were made before the due date of filing of the return, therefore, no disallowance can be made.

Aggrieved with such order of the CIT (A)-NFAC, the Revenue is in appeal before the Tribunal.

The learned DR at the time of hearing filed a copy of the decision of the Hon'ble Supreme Court in the case of Checkmate Services (P) Ltd vs. CIT in Civil Appeal No.2833 of 2016 and batch of appeals order dated12th October, 2022 wherein it has been held that the Employees’ contribution to PF & ESI have to be deposited in terms of those enactments on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, is deemed to be an income and cannot be treated as a deduction. He accordingly submitted that the order of the learned CIT (A)-NFAC being not in accordance with law has to be reversed and the addition/adjustment made by the CPC has to be sustained.

The learned Counsel for the assessee, on the other hand, while stating that the Hon'ble Supreme Court has decided the issue against the assessee, however, submitted that while uploading the tax audit report, due to mistake, the date of payment was wrongly entered in due date column and the due date of remittance was wrongly entered in the date of payment column. Further, the actual amount of delayed payment is only Rs.10,03,682/- and not Rs.2,86,15,909/- as added by the CPC. He accordingly submitted that he has no objection, if the matter is restored to the file of the CIT (A)NFAC with a direction to adjudicate the issue in the light of the direction of the Hon'ble Page 3 of 5 Supreme Court and the actual dates of remittances of employee’s contribution to PF & ESI.

We have heard the rival arguments and perused the record. We find the CPC in the instance case processed the return of income u/s 143(1) by adding delayed payment of employees’ contribution to PF & ESI of Rs.2,86,15,909/-and determined the taxable income at Rs.39,35,72,320/- as against the returned income of Rs.36,49,56,410/-. We find the learned CIT (A) NFAC deleted the addition on the ground that the assessee has remitted such amount of the Employees’ contribution to PF & ESI before the due date of filing of the return. We find the issue stands decided against the assessee by the Hon'ble Supreme Court in the case of Checkmate Services (P) Ltd (Supra) where it has been held that the employees’ contribution to PF & ESI, if not remitted before the due date prescribed in the respective enactments, cannot be allowed as a deduction. Therefore, the order of the learned CIT (A) NFAC to this extent is contrary to law as laid down by the Hon'ble Supreme Court and therefore, has to be reversed.

However, it is the submission of the learned Counsel for the assessee that while uploading the tax audit report, due to mistake, the date of payment was wrongly entered in due date column and the due date of remittance was wrongly entered in the date of payment column. Further, the actual amount of delayed payment according to him is only Rs.10,03,682/- and not Rs.2,86,15,909/- as added by the CPC. In view of the above, we deem it proper to restore the issue to the file of the CIT (A) NFAC with a direction to grant one opportunity to the assessee to substantiate its case by producing the relevant details of remittances and decide the issue in the light of the decision of the Hon'ble Supreme Court in the case of Checkmate Services (P) Ltd (Supra). Needless to say, the CIT (A)NFAC shall give due opportunity of being heard to the assessee and decide the issue in accordance with law. We hold and direct accordingly. The only ground raised by the Revenue is accordingly allowed for statistical purposes.