EXCEL PHOSPHATES PRIVATE LIMITED,MEERUT vs. DCIT, CPC, BENGALURU

BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER Year : 2018-19] Excel Phosphates Pvt.Ltd., vs DCIT, 195-196, Shatabdi Nagar, CPC, Bengaluru. Delhi Road, Meerut, Uttar Pradesh-250103. PAN-AACCE3927B APPELLANT RESPONDENT Appellant by None Respondent by Shri Sanjiv Mahajan, Sr.DR Date of Hearing 02.03.2022 Date of Pronouncement 02.03.2022 ORDER

PER KUL BHARAT, JM :

“Ground 1: That on the facts and circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) erred in facts and in law in upholding the addition of INR 2,39,295/- in the order passed by DCIT (CPC-Bengaluru) ("AO") u/s 143(1) of the Income Tax Act, 1961. Ground 2: That on the facts and circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred in not adjudicating Page | 1 the appeal "ground-wise" and collectively dismissing all the grounds without discussing the individual grounds on their merit. Ground 3: That on the facts and circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred in facts and in law, in not dismissing the intimation u/s 143(1) from the CPC, overstepping its jurisdiction and making an adjustment on a debatable issue. Ground 4: That on the facts and circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred in facts and in law by disregarding various judgements from High courts, including the jurisdictional High Court, and Supreme court of India, explicitly ruling that the provisions of Section 43B are applicable to both - employer as well as employee contribution to provident fund. Ground 5: That on the facts and circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred in facts and in law in applying the amendment to section 36(1)(va) with a retrospective effect. The AO was incorrect in law by stepping on the substantive rights of the Appellant and denying it the deduction, even though the appellant had duly complied with the law, as prevailing in the subject assessment year. Ground 6: That on the facts and circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred in facts and in law in not affording an opportunity of being heard to the Appellant and passing an order in a hasty manner.

Ground 7: The Appellant craves to add, delete, modify any grounds of appeal during the course of proceedings.” 3. No one appeared on behalf of the assessee at the time of hearing. Therefore, the appeal was taken up for hearing in the absence of assessee.

4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), who confirmed the addition.

“In view of the judgement of the Division Bench of Delhi High Court in Commissioner of Income Tax versus AIMIL Limited, (2010) 321 ITR 508 (Del.) the issue is covered against the Revenue and, therefore, no substantial question of law arises for consideration in this appeal. The legislative intent was/is to ensure that the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee’s Provident Fund (EPD) and Employee’s State Insurance Scheme (ESI) as deemed income of the employer under section 2(23)(x) of the Act.”

Therefore, respectfully following the ratio laid down by the Hon’ble Jurisdictional High Court in the above-mentioned binding precedent, I hereby direct the Assessing Officer to delete the disallowance. Thus, grounds raised by the assessee are allowed. Page | 4

Order pronounced in the open Court on 02nd March, 2022.