BABU BHURA VARCHAND,BHUJ vs. THE INCOME TAX OFFICER, BHUJ-1, BHUJ

We have heard the submissions of both the parties on this preliminary issue. We note that the provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988) SC 897) (7) observed as follows: “4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay……...”

When we weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. We note that the reasons given in the affidavit for condonation of delay, was convincing, and the reason would constitute reasonable and sufficient cause for the delay in filing this appeal. Considering the above facts and circumstances of the case, as narrated above, We are of the considered opinion that in the interest of justice, the delay deserves to be condoned and appeal of the assessee should be decided on merits in accordance with law. Accordingly, we condone the delay and admit the appeal of the assessee for adjudication on merit.

On merit, the short issue, which falls for consideration is that Employees` Contribution to PF, which is paid by the assessee, within the grace period allowed by the PF Act, should be allowed to the assessee. The Ld. Counsel for the assessee argued that no doubt, late payment of the Employees contribution to PF, is covered against the assessee, by the judgement of the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs CIT-I, in Civil Appeal No. 2833 of 2016, dated 12/10/2022. However, some of the payments of Employees contribution to PF, were paid by the assessee under consideration, within grace period, which were not examined by the Assessing Officer. The Ld. Counsel for the assessee submitted challan of the PF contribution and stated that out of total addition of Rs.14,86,251/-, the employees contribution to PF was paid within grace period to the tune of Rs.8,29,346/-, therefore, no disallowance should be made to the extent of Rs.8,29,346/-, in the hands of the assessee.

On the other hand, Ld. Sr-DR for the Revenue submitted that late payment of employees PF is covered against the assessee by the judgement of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs CIT-I, in Civil Appeal No. 2833 of 2016, dated 12/10/2022. However, since the assessee has submitted additional evidences, before the Tribunal, showing that some of the employees PF were paid within grace period, therefore benefit is to be given to the assessee in respect of employees contribution to PF, which is paid within grace period. The assessee submitted first time, before the Tribunal, the challan showing deposits of employees contribution to PF, through banking channel which is required to be examined by the Assessing Officer. Hence for the interest of justice, matter may be remitted back to the file of Assessing Officer for examination of these evidences.

We have heard the submissions of both the parties and have perused the material on record. We note that Ld. Counsel for the assessee furnished a chart showing employees` contribution to PF, paid within grace period, and submitted additional evidence by way of challan, showing payment of PF within grace period, which were not examined by the assessing officer. The assessee submitted, before the Bench, for the first time, showing payment made within grace period and payment which is not made in grace period, which is to be disallowed, the summary is reproduced below:

In the result, the appeal of the assessee is allowed for statistical purposes, in above terms.