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Income Tax Appellate Tribunal, DELHI
Before: SH. ANIL CHATURVEDI
This appeal filed by the assessee is directed against the order dated 14.12.2021 of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) - Delhi relating to Assessment Year 2019-20.
The relevant facts as culled from the material on records are as under :
Assessee is a firm which is stated to be engaged in the business of Man Power Supply. assessee filed its return of income for A.Y. 2019-20 on 30.10.2019 declaring total income at Rs.3,74,072/-. The return of income was processed by Centralized Processing Centre (CPC), Bengaluru u/s 143(1) of the Act by order dated 06.05.2020 determining total income at Rs.46,82,740/- by inter alia making addition of Rs.42,57,824/- on account of alleged late payment of Employees’ contribution towards EPF/ESI by invoking the provision of Section 36(1)(va) of the Act.
Aggrieved by the order of AO, assessee carried the matter before the CIT(A)-NFAC who vide order dated 14.12.2021 in Appeal No. CIT(A), Ghaziabad/10048/2020-21 partly allowed the appeal of the assessee. Aggrieved by the order of CIT(A)-NFAC, assessee is now in appeal and has raised the following grounds:
1. “That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. Assessing Officer/CPC in making aggregate addition of Rs.42,57,824/- on account of employee's contribution to ESI and EPF paid before the due date of filing the return and that too by recording incorrect facts and findings and without observing the principles of natural justice and without appreciating the facts and circumstances of the case and latest law in this regard.
2. That in any case and in any view of the matter, action of Ld. CIT(A] in confirming the action of Ld. Assessing Officer /CPC in making aggregate addition of Rs. 42,57,824/- on account of employee's contribution to ESI and EPF paid before the due date of filing the return, is bad in law and against the facts and circumstances of the case and the same is not sustainable on various legal and factual ground.
3. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the order u/s 143(1)(a) passed by Ld. Assessing Officer /CPC dated 06.05.2020 making disallowance u/s 36(l)(va) being a debatable issue, the jurisdiction was not validly assumed as per law.
4. That having regard to the facts and circumstances of the case, Ld CIT(A) has erred in law and on facts in confirming the action of Ld DCIT/CPC in charging interest u/s 234A, 234B and 234C of the Income Tax Act, 1961.”
5. Before me, at the outset, Learned AR submitted that the sole grievance of the assessee is the disallowance of Rs.42,57,824/- on account of delay in deposit of employee’s contribution towards provident fund and ESI fund.
8. Before me, Learned AR submitted that addition of Rs.42,57,824/- has been made in the intimation issued by CPC, Bangalore u/s 36(1)(va) of the Act for the reason that the contribution received towards PF/ESIC by the assessee from its employees was not deposited before the due date. He submitted that though there has been delay in deposit of PF/ESIC Contributions but all the contributions received by the assessee from its employees have been deposited with the appropriate authorities before the filing of return of income by the assessee. He therefore submitted that since the amounts have been deposited before the filing of return of income, no disallowance is called for and for aforesaid proposition, he relied on the decision in the case of Azamgarh Steel & Power vs. CPC in dated 31.05.2021 and CIT vs. AIMIL Ltd. [2010] 188 Taxman 265 (Delhi) and various other decisions.
Learned DR on the other hand supported the order of lower authorities and also placed reliance on the decision of Delhi Tribunal in the case of Vedvan Consultants Pvt. Ltd. vs DCIT in order dated 26.08.2021. He also submitted that the amendment brought out by Finance Act 2021 would be applicable to the present case as by the amendment it has been clarified that provisions of Section 43B of the Act shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub clause (x) of Clause (24) of Section 2 applies.
I have heard the rival submissions and perused the materials available on record. The issue in the present ground is with respect to the addition made u/s 36(1)(va) of the Act on account of delayed deposit of PF/ESIC contributions. Before me, Learned AR has pointed to the statement of the deposits made during the year and from that table he has pointed out that though there has been delay in deposit of the PF/ESIC Contributions but all the amounts have been deposited with the appropriate authorities before filing of return of income by the assessee. The aforesaid contention of the Learned AR has not been controverted by Learned DR. I find that the various Benches of the Tribunal at Delhi and other Tribunal have held that the delayed deposits of PF & ESIC before the date of filing of return is an allowable expenditure and for which reliance was placed on the decision of Hon’ble Delhi High Court in the case of AIMIL Ltd. (supra). As far as reliance by Learned DR on the amendment brought out by Finance Act 2021 is concerned, “notes on clauses” to the Finance Bill 2021 clearly states that the amendment will take effect from 1st April 2021 and will apply in relation to the A.Y. 2021-22 and subsequent assessment year. In such a situation, I am of the view that the amendment brought out by Finance Act 2021 does not apply to the assessment year under consideration. As far as the reliance of Revenue on the decision of Vedvan Consultants Pvt. Ltd. (supra) is concerned, I find that the various division Benches of the Delhi & other Tribunal have held the delayed deposits of PF/ESIC Contributions to be allowable expenditure if the same are deposited with the appropriate authorities before filing of return of income by the assessee. Further, it is settled law that when two judgments are available giving different views, then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon’ble Supreme Court. I therefore, following the decision rendered by Hon’ble Apex Court in the case of M/s. Vegetable Products Ltd. (supra) and AIMIL Ltd. (supra), are of the view that no disallowance u/s 36(1)(va) of the Act is warranted in the present case. I therefore direct the AO to delete the addition. Thus the assessee’s ground is allowed.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 21.04.2022