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Income Tax Appellate Tribunal, PUNE “C” BENCH, PUNE
Before: HON’BLE SHRI S.S. GODARA & SHRI G. D. PADMAHSHALI
॥ आयकर अपीलीय न्यायाधिकरण, पुणे “ ” न्यायपीठ, पुणे में ॥ IN THE INCOME TAX APPELLATE TRIBUNAL, PUNE “C” BENCH, PUNE BEFORE HON’BLE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपीलसं. / ITA No. 163/PUN/2022 Monk Automation Pvt. Ltd. L-19, Nr Galxo, MIDC, Ambad, Nasik-422010 PAN:AABCM9042N . . . . . . . अपीलाथी / Appellant
बनाम / V/s. Deputy Commissioner of Income Tax Officer CPC, Bengaluru. . . . . . . .प्रत्यथी / Respondent द्वारा / Appearances Assessee by : Shri Kishor Phadke Revenue by : Shri Suhas Kulkarni सुनवाई की तारीख / Date of conclusive Hearing : 27/12/2022 घोषणा की तारीख / Date of Pronouncement : 27/12/2022 आदेश / ORDER PER G. D. PADMAHSHALI, AM; Present appeal is assailed against order of National Faceless Appeal Centre, Delhi [for short “NFAC”] dt. 20/12/2021 passed u/s 250 of the Income Tax Act, 1961 [for short “the Act”] confirming the disallowance made u/s 36(1)(va) by the Deputy Commissioner of Income Tax, Central Processing Centre, Bengaluru [for short “CPC”] u/s 143(1) of the Act for assessment year [for short “AY”] 2018-19. ITAT-Pune Page 1 of 5
Monk Automation Pvt. Ltd. ITA No.163/PUN/2022 PAN:AABCM9042N 2. Without rearticulating grounds from appeal memo, its apt to voice that, the sole & substantive ground of present appeal is directed against disallowance made u/s 36(1)(va) on the basis of information reported in tax audit report [for short “TAR”].
Briefly stated, the facts of the case are; 3.1 The assessee a resident company, has for AY 2018-19 e-filed its return of income [for short “ITR”] on 08/05/2020 declaring total income of ₹63,31,140/-, which was e-processed u/s 143(1) of the Act on 07/08/2020 with an addition u/s 36(1)(va) of the Act for sum of ₹11,96,832/- for the reason that the amount received by the assessee-employer from its employees as contribution either towards the Employees Provident Fund (EPF) or Employees State Insurance Corporation (ESIC) etc., [for short “the relevant funds”] was not credited to the employees accounts on or on or before the due date as prescribed under the respective Acts and further denied the credit of TDS reflected in Form No 26As for sum of ₹4,44,745/- ITAT-Pune Page 2 of 5
Monk Automation Pvt. Ltd. ITA No.163/PUN/2022 PAN:AABCM9042N 3.2 Aggrieved by the same, the assessee taken up the matter before first appellate authority [for short “FAA”] and in the event of unsuccessful attempt before Ld. FAA, the assessee brought up the matter in appeal before the Tribunal against said disallowance alleging the action of both the tax authorities below [for short “TAB”] as contra-legem.
It is an undisputed fact that, the TAR filed by the assessee indicated the prescribed due dates of payment to the relevant funds under the respective Acts relating to employees share and the said amounts were deposited by the assessee beyond such prescribed due dates but before the filing of the return u/s 139(1) of the Act. The case of the assessee before the Ld. TAB was that such payments made on or before the due date as per section 139(1) of the Act amounts to sufficient compliance of the provisions in terms of section 43B of the Act, and hence not calling for any disallowance. Per contra, the Department has set up a case that the disallowance is warranted and inevitable because delayed deposit of the employees ITAT-Pune Page 3 of 5
Monk Automation Pvt. Ltd. ITA No.163/PUN/2022 PAN:AABCM9042N share beyond the prescribed due date under the respective Act is unsheltered by section 43B of the Act.
Nota bene, a similar issue came before the co- ordinate bench of the Tribunal in the case of “M/s Kothari Agritech Pvt. Ltd. Vs ADIT, Bengaluru” vide ITA No. 320/PUN/2022 wherein the Tribunal following the latest judgement of Hon’ble Supreme Court in the case of “Checkmate Services P. Ltd. & Ors Vs CIT & Ors” reported in 448 ITR 518, has after an sumptuous discussion vide para 4 to 20 thereof, adjudicated the issue in favour of Revenue and against the assessee, by upholding the disallowance made u/s 36(1)(va) of the Act, where the assessee failed to deposit employee’s share or contributions to any provident fund or superannuation fund or any fund set up under the provisions of the Employees State Insurance Act, 1948 (34 of 1948), or any other fund for the welfare of such employees as the case may be, on or before the prescribed due date under the respective Act.
ITAT-Pune Page 4 of 5
Monk Automation Pvt. Ltd. ITA No.163/PUN/2022 PAN:AABCM9042N 6. Since the facts in present case are similar to that of “M/s Kothari Agritech Pvt. Ltd. Vs ADIT, Bengaluru” (supra), we in the light of Hon’ble Apex Court judgement in “Checkmate Services P. Ltd. & Ors Vs CIT & Ors” (Supra) adopt the adjudication laid in para 5 to 20 of “M/s Kothari Agritech Pvt. Ltd.” (supra) and hold that the Ld. FAA was justified in sustaining the adjustment carried out u/s 143(1) by CPC on account of delayed deposit of employees share to the relevant funds, ergo we approbate the disallowance with no infirmity.
Resultantly, the appeal of the appellant is ALLOWED FOR STATISTICAL PURPOSE in above terms. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Tuesday 27th day of December, 2022.
-S/d- -S/d- S. S. GODARA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; दिन ांक / Dated : 27th day of December, 2022. आदेश की प्रधिधलधप अग्रेधिि / Copy of the Order forwarded to : 1.अपील र्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The Pr. CIT, Pune 4. The Pr. CIT(E), Pune 5. DR, ITAT, Pune “C” Bench, Pune 6. ग र्डफ़ इल / Guard File. आिेश नुस र / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकरअपीलीय न्य य दिकरण, पुणे / ITAT, Pune. ITAT-Pune Page 5 of 5