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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
आदेश / O R D E R
PER AMARJIT SINGH, AM:
The present appeal filed by the assessee against the order passed by the ACIT(CPC) u/s 143(1) of the I.T. Act, 1961, dated 16.03.202 for A.Y. 2019-20. The assessee has raised the following grounds before us:
“1. The order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, u/s 250 is erroneous and requires to be modified. It is submitted that it be so held now.
2. The learned CIT(A) erred in facts and in law in confirming the addition of Rs. 54,50,560/- in respect of employee's contribution to Provident Fund paid on or before the due date of filing return of income and allowable u/s43B of the Act. It is submitted that it be so held now. 2.1. The learned CIT(A) erred in not following decision of Jurisdictional High Court in case of CIT Vs. Hindustan Organics Chemicals Ltd 366 ITR 1 and CIT v. Ghatge Patil Transports Ltd 228 Taxman 340. It is submitted that it be so held now.
2 Vishalakshi Vishwanath Vs. CIT(A)
The learned CIT(A) ought to have directed AO to set off brought forward unabsorbed depreciation against income computed under the head business and profession. It is submitted that it be so held now.
The learned CIT(A) ought to have directed AO to delete interest u/s 234B of the Act. It is submitted that it be so held now. Your appellant prays for leave to add to alter and/or to amend any of the grounds before the final hearing of the appeal.”
The assessing officer has disallowed a sum of Rs.54,50,561/- in respect of delay in payment of employees contribution towards provident fund while processing the return of income u/s 143(1) of the Act. The assessee has filed appeal against the order u/s 154 of the Act before the ld. CIT(A). However, the same was dismissed on the reason that there was delay of 13 days in filing of appeal. During the course of appellate proceedings, at the outset the ld. Counsel has referred his submission made before the ld. CIT(A) dated 01.02.2021 regarding condonation of delay in filing of appeal by 11 days categorically stating that the delay was occurred because order was received on 12.05.2020 when the lockdown was in forced and all offices were closed, therefore, the appeal could not be filed in time online. In this regard the ld. Counsel has also referred the order of Hon’ble Supreme Court, dated 23.03.2020, wherein because of the difficulty faced across the country for filing the appeals within the period of limitation on account of prevailing of Covid-19 virus the limitation period was extended with effect from 15.03.2020. After taking into consideration the facts and material as supra, it is observed that ld. CIT(A) has not specifically controvert the above referred petition of the assessee for condonation of delay in filing of appeal by only 11 days during the period of lockdown an account of prevailing Covid-19 virus. Section 250(6) contemplates that the ld. CIT(A) would determine points in dispute and therefore record reasons of such point in support
3 Vishalakshi Vishwanath Vs. CIT(A) of his conclusion. After considering the above facts and material on record we observe that there is a sufficient cause of marginal delay in filing this appeal by 11 days before the ld. CIT(A), therefore, we consider the ld. CIT(A) is not justified on dismissing the appeal merely on the ground that there was delay of 13 days in filing the appeal.
Heard both sides and perused the material on record. Without retreating the facts as elaborated above, the assessee has deposited employee’s contribution to PF/ESIC after due date specified in PF/ESIC Acts but before the due date of filing the return of income as prescribed in section 139(1) of the act. With the assistance of Ld. Representative, we have perused the decision of Hon’ble Jurisdiction Bombay High Court in the case of CIT v. Hind Filter (supra) and GhatgePatil Transports Ltd. (supra). In the case of GhatgePatil Transports Ltd. (supra), the Hon’ble jurisdictional High Court held that both employers and employee’s contributions are covered under the amendment to section 43B and judgment of the Hon’ble Supreme Court in CIT v. Alom Extrusions Ltd. [2009] 319 ITR 306/185 Taxman 416 and payment made was subject to benefit of section 43B. We have also gone through the decision of ITAT MavinahalliShivanajappa Vijay Kumar (supra) and AdhyarAnandBhavan Sweets India P. Ltd. (supra) on the issue of applicability of the amended provisions of Explanation 2 to section 36(1)(va). The ITAT Bangalore vide in the case of Shivanajappa Vijay Kumar (supra)after following the decision of Hon’ble High Court of Karnataka held that the amendment made to section 36(1)(va) of the Act will have prospective application. We have also perused the decision of ITAT Chennai in the case of Adhyar Anand Bhavan Sweets India P. Ltd. (supra), wherein after following the decision of Hon’ble High Court of Madras in the case of M/s Industrial Security and Intelligence India P.
4 Vishalakshi Vishwanath Vs. CIT(A)
Ltd. in TCA No. 585/2015 held that the amendment brought in the statute by Finance Act, 2021, the provisions of section 36(1)(va) r.w.s. 43B of the Act amended by inserting Explanation 2 is prospective and not retrospective.
6.1 In the case of the assessee, it had remitted the employee’s contribution towards PF/ESIC beyond the due date for payment as specified in PF/ESIC Act, but within the due date for filing the return of income, therefore, following the aforesaid decisions, we considered that Ld. CIT(A) is not justified in disallowing the claim of deduction of the assessee. Accordingly, we decide this issue in favour of the assessee and disallowance made by the Assessing Officer is deleted. Since we have decided the issue in favour of the assessee, therefore, ground No. 1 of the assessee is not required adjudication.
In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open court on 09.03.2021