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Per Anadee Nath Misshra, AM (A) For the sake of convenience and brevity these three appeals by different assessees are disposed off through this consolidated order. Grounds taken in these appeals of the three different Assessees are as under:
ITA No.-999/Del/2021 “I. Action of the CIT(A) in confirming the action of A.O. in making an addition of Rs. 82,346/- u/s 36(1)(va) of the I.T. Act 1961 for delayed deposit of employees contribution of EPF and ESI but before the due date of filing of return is unjust, illegal, arbitrary and against the facts and circumstances of the case.”
ITA No.-1000/Del/2021 “I. Action of the CIT(A) in confirming the action of A.O. in making an addition of Rs. 9,49,894/- u/s 36(1)(va) of the I.T. Act 1961 for delayed deposit of employees contribution of EPF and ESI but paid before the due date of filing of return is unjust, illegal, arbitrary and against the facts and circumstances of the case.” .- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others ITA No.-1011/Del/2021 “1. That the Impugned order of Ld. CIT(A) National Faceless Appeal Centre, Delhi u/s 250 of Income Tax Act, 1961 for the assessment year 2018-19 dated 23-07-2021 is bad in law and illegal on the facts and in the circumstances of the case and legal position.
That on the facts and circumstances of the case and the legal position, the learned CIT(A) has erred in the confirming the addition of Rs. 3,10,435/- on account of employee’s contribution towards PF/ESI deposited with the authorities after the due date but before the due date of filing the return of the Income; whereas the same is allowable in view of various judicial decisions.
That on the facts and circumstances of the case and the legal position, the learned CIT(A) has erred on relying upon the amendments made by the Finance Act 2021, i. in clause (va) of sub-section 1 of Section 36 of the Act by inserting Explanation 2, and ii. in Section 43B of the Act by inserting Explanation 5. Whereas as per ‘Notes on Clauses’ to the Finance Budge 2021, “the aforesaid amendments will take effect from 1st April 2021 , and will, accordingly apply in relation to the assessment year 2021-22 and subsequent assessment years.”
Without prejudice e to the above, that on the facts and circumstances of the case and the legal position, the learned CIT(A) has erred in confirming the aforesaid addition under section 143(1) of the IT Act 1961 ; whereas:- i. power to make an adjustment u/s 143(1)(a) can be invoked only when the claim is ‘prima facie inadmissible’ ii. the scope of the powers to make prima fc ie adjustment under section 143(1)(a) is somewhat similar to the powers to rectify a mistake apparent from the record under section 154 iii. the deduction claimed must be inadmissible on the face of the return and the documents and accounts accompanying it. iv. if the Assessing Officer doubts correctness of any claims, he is required to follow the procedure prescribed under section 143(2) and (3) of the Act. .- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others v. in view of various judicial decisions, the aforesaid additions cannot be made u/s 143(1) of the I.T. Act, 1961.
That the appellant craves leave to add, alter, delete, amend, modify, or vary any ground (s) of appeal before or at the time of hearing of appeal.”
(B) In each of these appeals a common legal issue is involved. The assessee claimed the deduction on account of payment of PF/ESI. These payments were made by the respective assessees after due date of payment prescribed under the respective acts. However, these payments were made before due date of filing of return under the Income Tax Act, 1961 (“I.T. Act”, for short). The respective Assessing Officers have made the disallowances under Section 36(1)(va)Section 43B of I.T. Act. The quantum of disallowance is Rs. 9,49,894/- in the case of M/s Global Groupware Solutions Limited; Rs. 82,346/- in the case of Pachouli Wellness Clinic LLP and Rs. 3,10,435/- in the case of Mr. Naveen Kumar. Vide the respective impugned appellate orders dated 13.07.2021, 27.07.2021 and 23.07.2021 of the respective learned Commissioner of Income Tax (Appeals), the aforesaid disallowances were confirmed. The present appeals before us have been filed by the assessees in Income Tax Appellate Tribunal (“ITAT”, for short) against these impugned appellate orders of the respective Ld. CIT(A). At the time of hearing before us, it was submitted on behalf of the assessees (Appellants) that the issue in dispute is covered in favour of the assessee(s) by order of Co-ordinate Bench of ITAT, Delhi in the case of DCIT vs. Planman HR (P) Ltd. in ITA No. 5152/Del/2017. It was further brought to our attention that the issue in dispute is also covered in favour of the assessee(s) by numerous other orders of Hon’ble High Court, and ITAT; such as, the following:
ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others 1. Order dated 10.09.2018 vide in the case of ITO vs Aimil Ltd. (2010) 321 ITR 508 (Delhi) 2. CIT v. Nipso Polyfabriks Ltd. [2013] 350 ITR 326 3. CIT vs. Merchem Ltd. 378 ITR 443 (Kerala) 4. Sagun Foundry (P.). vs. CIT[2017] 291 CTR 557 (Allahabad) 5. CIT vs. Bharat Hotels Ltd. [2019] 103 taxmann.com 295/410 ITR 417 (Delhi) 6. Order dated 01.07.2021 in the case of Raodways Private Limited [TS-510- ITAT-2021 (HYD)], ITAT, Hyderabad.
Order dated 31.05.2021 of Delhi Bench of ITAT in ITA No. 1626/Del/2020 in the case of Azamgarh Steel & Power Pvt. Ltd.
Salzgitter Hydraulics Pvt. Ltd. vs. ITO 128 taxman.com 192[Hyderabad Tribunal] 9. M/s Crescent Roadways Pvt Ltd. vs. Dy. CIT – ITA No. 1952/Hyderabad/2018 10. Order dated 14.06.2021 of Agra Bench of ITAT, in ITA No. 20 & 21/Agr/2021 in the case of M/s Mahadev Cold Storage 11. M/s Essae Teraoka (P.) Ltd. vs. DCIT- [2014] 43 taxmann.com 33 (Karnataka) 12. Order dated 19.05.2021 vide ITA No. 4192/Mum/2012 and 197/HYD/2017 in the cases of Anand Kumar Jain vs. ITO and Value Momentum Software Services Private Limited vs. DCIT.
Order dated 28.09.2021 vide ITA Nos. 51 & 54-55/Jodh/2021 in the case of Mohan Ram Chaudhary vs. ITO.
ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others 14. Bata India Ltd. vs. DCIT [2020] 180 ITD 464 (Kolkata-Trib.) 15. DCIT vs. Eastern Power Distribution Company of A.P. Ltd. [2016] 160 ITD 432(Visakhapatnam-Trib.) 16. Nuzivedu Swati Coastal Consortium vs. ITO [2015] 62 taxmann.com 258 (Hyderabad-Trib.) 17. Order dated 30.07.2021 of ITAT, Delhi in in the case of Yogi Ji Technoequip Pvt. Ltd. vs. DCIT, 18. DCIT vs Teesta Valley Tea Co. Ltd. [2017] 85 taxmann.com 301 (Kolkata- Trib.) 19. Oder dated 11.10.2021 of Bangalore Bench of ITAT in ITA No. 307/Bang/2021 in the case of M/s Jana Urban Services for Transformation Pvt. Ltd. vs. The Dy. Commissioner of Income Tax 20. Order dated 28.09.2021 of Jodhpur Bench of ITAT in ITA No. 54/Jodh/2021 in the case of Mohan Ram Chaudhary vs. The ITO.
Order dated 01.09.2021 of Kolkata Bench of ITAT, in ITA No. 244/Kol/2021 in the case of AKS Equipments (P) Ltd. vs. DCIT.
Order dated 27.10.2021 of ITAT, Delhi, in ITA No. 1822/Del/2020 in the case of Amandeep Singh Khurana.
(C) The learned Sr. Departmental Representative (“Ld. Sr. DR”, for short) for Revenue relied on the orders of the Assessing Officers, and the respective impugned orders of the Ld. CIT(A). .- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others (D) We have heard the Ld. Sr. DR as well as the Ld. Authorized Representative (“Ld. AR”, for short) of the assessees. We have also perused the materials available on record. It is not in dispute that the payments on account of PF/ ESI were made by the assessees after due date prescribed under the respective acts, but before due date of filing of return under the I.T. Act. The Ld. Sr. DR has also not contradicted the contentions made from the assessee’s side that the issue in dispute is covered in favour of the assessee by the aforesaid orders in the cases of ITO vs Aimil Ltd. (supra), CIT v. Nipso Polyfabriks Ltd. (supra), CIT vs. Merchem Ltd. (supra), Sagun Foundry (P.). vs. CIT(supra), CIT vs. Bharat Hotels Ltd. (supra), Raodways Private Limited (supra), Azamgarh Steel & Power Pvt. Ltd. (supra), Salzgitter Hydraulics Pvt. Ltd. vs. ITO (supra), M/s Crescent Roadways Pvt Ltd. vs. Dy. CIT – (supra), M/s Mahadev Cold Storage (supra), M/s Essae Teraoka (P.) Ltd. vs. DCIT- (supra), Anand Kumar Jain vs. ITO (supra), and Value Momentum Software Services Private Limited vs. DCIT.(supra), Mohan Ram Chaudhary vs. ITO. (supra), Bata India Ltd. vs. DCIT (supra), DCIT vs. Eastern Power Distribution Company of A.P. Ltd. (supra), Nuzivedu Swati Coastal Consortium vs. ITO (supra), Yogi Ji Technoequip Pvt. Ltd. vs. DCIT (supra), DCIT vs Teesta Valley Tea Co. Ltd. (supra), M/s Jana Urban Services for Transformation Pvt. Ltd. vs. The Dy. Commissioner of Income Tax (supra), Mohan Ram Chaudhary vs. The ITO (supra), AKS Equipments (P) Ltd. vs. DCIT(supra), Amandeep Singh Khurana (supra). No facts and circumstances, or order legal precedents have been brought to our attention from either side to persuade us to take a view against the assessee in the matters under dispute in the present appeals before us. We also find that the aforesaid ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others order dated 15.07.2021 in the case of DCIT vs. Planman HR (P) Ltd. vide ITA No.- 5152/Del/2017 was passed by Co-ordinate Bench of ITAT, Delhi in which one of us (the Judicial Member) was the co- author, the relevant portion of which is reproduced below:
“ ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others ITA Nos.- 999, 1000 and 1011/Del/2021 Global Groupware Solution Ltd. and others
”
(E) In view of the foregoing, and consistent with the view already taken by Co- ordinate Bench of ITAT, Delhi, in order dated 15.07.2021 in the aforesaid case of DCIT vs. Planman HR (P) Ltd. vide ITA No.- 5152/Del/2017; we decide the issues in dispute before us in the present appeals, against Revenue and in favour of the assessees. Accordingly, we direct the respective Assessing officers to delete the aforesaid amounts of Rs. 9,49,894/- and Rs. 82,346/- and Rs. 3,10,435/- in the cases of M/s Global Groupware Solutions Limited; Pachouli Wellness Clinic LLP and Mr. Naveen Kumar, respectively.
(F) In the result, all the three appeals filed by the assessees are allowed for statistical purposes.
Order was orally pronounced in Open Court on 22.11.2021 after conclusion of hearings in the respective cases. Now this order in writing is signed today on 25.11.2021.