SIDDHIVINAYAK ENTERPRISES,AKURDI PUNE vs. WARD 9, AKURDI PUNE

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1133/PUN/2025 िनधा�रण वष� / Assessment Year : 2018-19 Siddhivinayak Enterprises, Vs. DCIT, CPC, Bengaluru. Office No.248, B Wing, Jay Ganesh Vision, Akurdi, Pune- 411035. PAN : ACLFS1546E Appellant Respondent Assessee by : Shri Bharat Shah Revenue by Shri Amit Bobde : Date of hearing : 09.03.2026 Date of pronouncement : 06.05.2026 आदेश / ORDER PER VINAY BHAMORE, JM: This appeal filed by the assessee is directed against the order dated 28.02.2025 passed by Ld. CIT(A)/NFAC for the assessment year 2018-19. 2. The appellant has raised the following grounds of appeal :- “1) The learned DCIT CPC erred in making an addition towards employees' contribution to ESIC and PF Addition made be kindly deleted. 2) The authorities below erred legally by making and confirming additions towards employees' contribution to PF and ESIC amounting to Rs.52,44,109/- and Rs.5,00,913/- respectively by making prima facie adjustments in 143(1)(a) communication. Prima facie adjustment is not possible as per statute, and hence the addition so made via 143(1)(a) communication is not possible. Hence addition be deleted and just and proper relief be granted to the assessee in this respect.

2 ITA No.1133/PUN/2025 3) The Appellant prays to be allowed to add, amend, modify, rectify, delete, or raise any ground of appeal before or at the time of the hearing.” 3. Facts of the case, in brief, are that the assessee is a partnership firm and has furnished return of income on 08.10.2018 declaring total income of Rs.7,18,340/-. The return was processed by CPC u/s 143(1) of the IT Act resulting in an addition/adjustment of Rs.57,45,022/- due to disallowance u/s 36(1)(va) of the IT Act for delayed payment of employees’ contribution to ESI and PF. Aggrieved with the above adjustment, the assessee filed an application for rectification u/s 154 of the IT Act, however, vide order dated 28.11.2019 the same was also not allowed. 4. Being aggrieved with the above intimation order, the assessee preferred an appeal before Ld. CIT(A)/NFAC. After considering the reply and submissions of the assessee, Ld. CIT(A)/NFAC dismissed the appeal filed by the assessee by relying on judgement passed by Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. (Civil Appeal No.2833 of 2016). 5. It is the above order against which the assessee is in appeal before this Tribunal. 6. We have heard Ld. Counsels from both the sides and perused the material available on record including the copy of case laws

3 ITA No.1133/PUN/2025 furnished by the assessee as well as by Ld. DR. In this regard, we find that employees’ contribution to PF & ESI was deposited by the assessee beyond the due dates prescribed under the respective Acts and due to this delayed payment, CPC made the impugned addition/adjustments of Rs.57,45,022/- u/s 36(1)(va) of the IT Act. Ld. CIT(A)/NFAC relying on judgement of Hon’ble Supreme Court in the case of Checkmate Service P. Ltd. (supra) confirmed the addition/adjustments. 7. It was the contention of Ld. AR that Hon’ble Supreme Court has admitted the SLP filed by Woodland (Aero Club) Private Limited involving the identical issue, however, it was admitted that no final order has been passed yet. Apart from above, it was also the contention of Ld. AR that Hon’ble High Court of Chhattisgarh has allowed the appeal involving the identical issue vide order dated 08.05.2025 passed in the case of Rajkumar Bothra vs. DCIT (TAXC No.56 of 2025). Ld. AR also relied on other coordinate bench decisions. He further submitted that the assessee has deposited the employees’ contribution to PF & ESI within the grace period allowed under the respective Acts. 8. On the other hand, Ld. DR appearing from the side of the Revenue drew our attention to an order passed by Hon’ble High Court of Bombay in the case of Rohan Korgaonkar vs. DCIT

4 ITA No.1133/PUN/2025 [2024] 159 taxmann.com 321 (Bom.) wherein under identical facts the appeal u/s 260A of the IT Act filed by the assessee was dismissed and addition made u/s 36(1)(va) of the IT Act while processing the return u/s 143(1)(a) of the IT Act was confirmed by observing as under :- “2. This is an appeal under section 260A of the Income Tax Act, 1961 (IT Act) to challenge the orders made by the Assessing Officer, CIT (Appeals) and the ITAT, disallowing an adjustment under section 141(l)(a)(iv) read with section 36 (l)(va) of the IT Act in respect of delayed remittance of employees' contributions to Employee State Insurance (ESI) and Provident Fund (PF) for the assessment year 2018-2019. 3. The ITAT, in this case, has noted that the Assessee failed to deposit contributions to ESI and PF in the employees' accounts for the relevant assessment year before the due date under the PF/ESI Acts. However, such contributions were deposited before the Assessee filed returns under Section 139 (1) of the IT Act. The ITAT relying upon the decision of the Hon'ble Supreme Court in Checkmate Services (P.) Ltd. v. CIT [2022] 143 taxmann.com 178/[2023] 290 Taxman 19/448 ITR 518 (SC) held that based upon such delayed deposits, no adjustments or deductions could be claimed. 4. In Checkmate Services (P.) Ltd. (supra), the Hon'ble Supreme Court considered the conflicting decisions on the subject and finally held that deductions or adjustments could be claimed only when the Assessee deposits the contribution before the due date provided under the Employees Provident Fund/Employee State Insurance Act. If the employees' contributions are deposited after the due date set out under the said Act, there is no question of deduction or adjustment on the ground that such contributions were deposited before the filing of returns under section 139(1) of the IT Act. 5. The ITAT has relied upon Chekmate Services (P.) Ltd. (Supra), and its reasoning is entirely consistent with the law laid down in Checkmate Services (P.) Ltd. (supra). Therefore, no case is made to interfere with the AO, CIT(appeals), and ITAT decisions. 6. However, Ms Kamat submitted that Checkmate Services (P.) Ltd. (Supra)was a matter where the assessment was made under section 143(3) of the IT Act and not under section 143 (1) (a) as in the present case. She also relied upon P.R. Packaging Service v. Asstt. CIT [2023] 148 taxmann.com 153/199 ITD 724 (Mum. - Trib) ITA No. 2376/MUM/2022, decided by the ITAT 07/12/2022 to support her contention.

5 ITA No.1133/PUN/2025 7. Though the decision cited was that of the ITAT, we have considered the same. In our judgment, however, the fact that the assessment order in Checkmate Services (P.) Ltd. (supra) was incidentally under section 143(3) and the assessment order in the present case is under section 143(1)(a) of the IT Act, makes no difference to the principle involved in this matter. The ITAT decision does not discuss why this circumstance constitutes a distinguishing feature based on which the ratio of Checkmate Services (P.) Ltd. (supra) could be departed from. 8. Checkmate Services (P.) Ltd. (Supra)holds that the deductions can be claimed or adjustments can be made under section I4l(l)(a)(iv), read with section 36(1)(va) only when the employer deposits the contributions in the employees' accounts on or before the due date prescribed under the Employees Provident Fund /Employees State Insurance Act. In this case, admittedly, the contributions were deposited in the employees' accounts beyond the due date. The circumstance that the assessment order was made under section 143(1)(a) of the IT Act can make no difference. 9. Therefore, in our judgment, no substantial questions of law as proposed arise in this appeal. The concurrent decisions of the three authorities call for no interference. 10. This appeal is, accordingly, liable to be dismissed and is, hereby, dismissed with no order as to costs.” 9. On the basis of above judgement of Hon’ble Bombay High Court, Ld. DR contended that the order passed by Jurisdictional High Court on identical issue is binding on the Tribunal and therefore, requested before the Bench to dismiss the appeal filed by the assessee. 10. After considering arguments of both the parties, we find force in the arguments of Ld. DR that the judgement passed by Hon’ble Jurisdictional Bombay High Court shall prevail and accordingly, respectfully following the judgement of Hon’ble Bombay High Court in the case of Rohan Korgaonkar (supra), we

6 ITA No.1133/PUN/2025 are of the considered opinion that the delayed payment of employees’ contribution to PF & ESI is not allowable as per section 36(1)(va) of the IT Act. However, during the course of hearing, the counsel of the assessee raised an alternative plea that the PF & ESI Act provides some grace period and certain payment was made by the assessee within the above grace period allowed by the respective Acts. Accordingly, it was alternatively prayed that the matter may kindly be restored back to the file of the Jurisdictional Assessing Officer to verify the claim of the assessee with regard to payment of impugned PF & ESI within the grace period allowed by the respective Acts. 11. Considering the totality of the facts of the case, we find force in the alternative plea raised by the counsel of the assessee and accordingly deem it appropriate to set-aside the order passed by Ld. CIT(A)/NFAC and restore the matter back to the file of Jurisdictional Assessing Officer with a direction to decide the issue of disallowance u/s 36(1)(va) of the IT Act upon verification of the claim made by the assessee with regard to depositing the employees’ contribution of PF & ESI within the grace period allowed under the respective Acts. He shall also keep in mind the final decision, if any, passed by Hon’ble Supreme Court in the case of Woodland (Aero Club) Private Limited. Needless to say the

7 ITA No.1133/PUN/2025 Assessing Officer shall give the opportunity of being heard to the assessee and decide the issue as per fact and law. Thus, the grounds of appeal raised by the assessee are allowed for statistical purposes. 12. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced on this 06th day of May, 2026. Sd/- Sd/- (R. K. PANDA) (VINAY BHAMORE) VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; �दनांक / Dated : 06th May, 2026. Sujeet/DOC Sujeet Kumar Digitally signed by Sujeet Kumar Sharma Sharma Date: 2026.05.07 11:29:09 +05'30' आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The Pr. CIT concerned. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B” ब�च, 4. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 5. आदेशानुसार / BY ORDER, // True Copy // Assistant Registrar आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.