M/S. OLIVE BAR & KITCHEN PVT. LTD,MUMBAI vs. ASST DIR OF INCOME TAX, CPC, BANGALORE, BANGALORE

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ITA 1556/MUM/2022Status: DisposedITAT Mumbai28 October 2022AY 2019-203 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal followed the Supreme Court's decision in Checkmate Services Pvt. Ltd. which held that Section 43B does not apply to employees' PF/ESI contributions, and the due date under Section 36(1)(va) is applicable. The appeals were remanded for fresh adjudication.

What were the facts?

The assessee appealed against the CIT(A)'s order partly allowing their appeal against an intimation under Section 143(1). The core issue was the disallowance of employees' contribution to PF and ESIC.

What were the issues?

Whether the disallowance of employees' contribution to PF/ESIC made by the AO is justified in light of the Supreme Court's ruling on Section 36(1)(va) and Section 43B.

Which sections of the Income-tax Act were involved?

Section 143(1),Section 36(1)(va),Section 43B

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Income Tax Appellate Tribunal, C BENCH, MUMBAI

order : 28.10.2022 O R D E R Per Rahul Chaudhary, Judicial Member: 1. These are two appeals for the Assessment Year 2017-18 and 2019-2020. In each appeal the Appellant has challenged the order, dated 27.04.2022, passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [hereinafter referred to as ‘the CIT(A)’] whereby the Ld. CIT(A) had partly allowed the appeal against the intimation/order passed by Deputy Commissioner of Income Tax, CPC under Section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). & 1557/Mum/2022 Assessment Year: 2017-18 & 2019-20 2. The solitary issue raised in both the appeals pertains to disallowance made by the Assessing Officer under Section 36(1)(va) of the Act in respect of Employees’ Contribution to Provident Fund (PF) and Employees State Insurance Corporation (ESIC). In the appeal filed by the Appellant for the Assessment Year 2018-19 (ITA No. 240/Mum/2022) identical issue was decided in the favour of the Appellant. However, recently, the Hon’ble Supreme Court has, in the case of Checkmate Services Pvt. Ltd. vs. CIT-1: 143 Taxmann.com 178 (SC)/ Civil Appeal No. 833 of 2016, held that the provision of Section 43B of the Act shall not apply to employees’ contribution to PF/ESI, and the due date specified under Section 36(1)(va) of the Act shall apply for determination of deductibility of employees’ contribution to PF/ESI. Accordingly, in view of the aforesaid judgment of the Hon’ble Supreme Court, the issue in both the appeals are remanded back to the file of the CIT(A) for fresh adjudication after giving the Appellant/Assessee a reasonable opportunity of being heard. Since the issues are being remanded back all the rights and contentions are left open. With the aforesaid directions, the present appeals stand disposed off.

3.

In the result, both appeals are allowed for statistical purposes. Order pronounced on 28.10.2022.

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