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Income Tax Appellate Tribunal, PUNE BENCH, ‘B’ PUNE
Before: SHRI R.S. SYAL & SHRI S.S. VISWANETHRA RAVI
आदेश / ORDER
PER R.S. SYAL, VP :
This appeal by the assessee is directed against the order
dated 16-07-2021 passed by the National Faceless Appeal Centre
(NFAC), Delhi u/s.250 of the Income-tax Act, 1961 (hereinafter
also called ‘the Act’) in relation to the assessment year 2018-19.
This appeal is time barred by 23 days. The assessee has
filed the present appeal on 07-10-2021 which was received
through Post. It appears that the delay in filing the instant appeal
pertains to Covid-19 pandemic. Therefore, the said delay is
condoned and the instant appeal is admitted for disposal on merits
2 ITA No.487/PUN/2021 Pravin Joshi
by virtue of judgment of the Hon’ble Supreme Court in
Cognizance for Extension of Limitation, In re 438 ITR 296 (SC)
read with judgment in Cognizance for Extension of Limitation, In
re 432 ITR 206 (SC) dated 08-03-2021 and 421 ITR 314.
The only issue raised in this appeal is against the
confirmation of disallowance of Rs.34,29,373/- made by the
Assessing Officer (AO) u/s.36(1)(va) of the Act on account of late
deposit of the Employees’ share of EPF and ESI etc.
Briefly stated, the facts of the case are that the AO made
disallowance of Rs.34,29,373/- in the intimation u/s.143(1) of
the Act on the ground that the assessee late deposited the
employees’ share of EPF and ESI etc. The ld. CIT(A) affirmed
the disallowance.
We have heard the ld. DR and gone through the relevant
material on record. There is no appearance from the side of the
assessee despite notice. We are, therefore, proceeding to dispose
of the appeal ex parte qua the assessee on merits.
It is seen as an admitted position from the impugned order as
well as the statement of facts before the ld. first appellate
authority that the assessee did deduct employees’ share of EPF
3 ITA No.487/PUN/2021 Pravin Joshi
and ESI and paid the same after the due date under the respective
legislations but before the time stipulated for filing return u/s
139(1) of the Act for the year under consideration. In our
opinion, this issue is no more res integra in view of several
judgments allowing deduction u/s 36(1)(va) of employees’ share
of contribution deposited after due date under the respective Acts
but before the date prescribed u/s 139 of the Act. The Hon’ble
Himachal Pradesh High Court in CIT vs. Nipso Polyfabriks Ltd.
(2013) 350 ITR 327 (HP) has held that there exists no difference
between employees or employer’s contribution and both are to be
allowed as deduction if deposited before the due date.
At this juncture, it is relevant to mention that the Finance Act,
2021 has inserted Explanation 2 below section 36(1)(va)
providing that the provisions of section 43B shall not apply for
the purpose of determining the due date under this clause w.e.f.
01.04.2021. The effect of this amendment is that if the amount of
employees’ contribution towards EPF, ESI, etc is delayed by an
employer beyond the due date under the respective Acts, the
disallowance will be called for notwithstanding the fact that it was
deposited before the due date u/s 139 of the Act. The
4 ITA No.487/PUN/2021 Pravin Joshi
Memorandum explaining the provisions of the Finance Bill, 2021, provides that this amendment will take effect from 1st April, 2021
and will, accordingly apply in relation to assessment year 2021-
2022 and subsequent assessment years. Since the assessment year
under consideration is 2018-19, which is anterior to the
amendment carried out with effect from A.Y. 2021-22, we hold
that the position of law as set out by various Hon’ble High Courts
including the one in CIT vs. Nipso Polyfabriks Ltd. (supra)
squarely applies to the facts and circumstances of the instant case,
thereby not warranting any disallowance since the amount in
question was admittedly deposited before due date u/s 139(1) of
the Act. The addition is therefore, directed to be deleted.
In the result, the appeal is allowed.
Order pronounced in the Open Court on 23rd June, 2022.
Sd/- Sd/- (S.S. VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 23rd June, 2022 सतीश
ITA No.487/PUN/2021 Pravin Joshi
आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The Respondent 2. 3. NFAC, Delhi 4. The CIT concerned 5. DR, ITAT, ‘B’ Bench, Pune गाड� फाईल / Guard file. 6. आदेशानुसार/ BY ORDER,
// True Copy //
Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
Date 1. Draft dictated on 23-06-2022 Sr.PS 2. Draft placed before author 23-06-2022 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *