R.K.ELECTRICALS,KOTA vs. ITO, WD-2(4), KOTA
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR
Jी राठाैड+ कमलेश जयन्तभाइर्] लेखा सदस्य एव Jी नरेन्द्र कुमार] न्यायिकसदस्य के सम{ा
BEFORE: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM
आयकर अपील सं-@प्ज्A छव. 333/Jच्त्/2022
निधर्ारण वषर्@Aेेमेेउमदज ल्मंत रू 2018-19
स्थायीलेखा सं-@जीआइर्आर सं-@च्Aछ/ह्प्त् छव.रू AAFFत्1068स्
अपीलाथीर्@Aचचमससंदज
प्रत्यथीर्@त्मेचवदकमदज
निधर्ारिती की ओर से@Aेेमेेमम इल रू छवदम
राजस्व की ओर से@त्मअमदनम इलरू ैीतप ह्ंनजंउ ैपदही ब्ीवनकींतलए Jब्प्ज्-क्त्
सुनवाइर् की तारीख@क्ंजम वf Hमंतपदह
: 08 /01/2025
उदघाेषणा की तारीख@क्ंजम वf च्तवदवनदबमउमदजरू 08/01/2025
आदेश@Oत्क्म्त्
च्म्त्रू छंतपदकमत ज्ञनउंतए Jनकपबपंस डमउइमतए
Present appeal came to be presented on 29.08.2022, challenging order dated 14.09.2021, passed by Learned CIT(A), NFAC, Delhi u/s 250
of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), as thereby the appeal filed by the assessee against intimation order dated
19.12.2019 u/s 143(1) of the Act was dismissed, while confirming the पदजपउंजपवद वतकमत.
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2. It may be mentioned here that earlier on 18.10.2022, present appeal filed by the assessee before this Appellate Tribunal was allowed and the addition made by way of adjustment, to the tune of Rs. 4,79,558/-, made by the CPC was deleted.
Said addition by way of adjustment was made by the CPC due to late
कमचवेपज वf ंउवनदजे वf म्उचसवलममे बवदजतपइनजपवद जवूंतके च्तवअपकमदज Fनदक.
Subsequently, Revenue filed an application for rectification of the ंइवअम ेंपक वतकमत कंजमक 18.10.2022. ैंपक ंचचसपबंजपवद बंउम जव इम तमहपेजमतमक
as MA No. 43/JPR/2023. Vide order dated 22.08.2024, MA No. 43/JPR/2023 was allowed by observing in the manner as under:-
“2.6 The Bench has heard the ld. DR and also taken into consideration the contents of the Misc. Application wherein the Department has put thrust on the order of the Honble Supreme Court in the matter of applicability of Section 36(1)(va) of the Act in the case of Checkmate Services Pvt. Ltd. v CIT-1 in Civil Appeal No. 2833/2026 dated 12-10-2022 wherein the Hon’ble Supreme
Court dismissed the appeal of the assessee company with an observation that ‘’the distinction between an employer’s contribution which is its primary liability under law in terms of section 36(1)(iv) as its liability to deposit amounts received by it or deducted by it (section 36(1(va), is thus crucial. Thus it is an essential condition for the deduction that such amounts are deposited on or before the due
कंजम. प्f ेनबी पदजमतचतमजंजपवद ूमतम जव इम ंकवचजमकए जीम दवद-वइेजंदजम बसंनेम नदकमत
section 43B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee’s contribution on or before the due date as condition for deduction. The Hon'ble Supreme Court in this order held that held that "the contribution by the employees to the relevant funds is the employer's income u/s 2(24)(x) of the Act and the deduction for the same can be allowed only if such amount is deposited in the employee's account in the relevant fund before the date stipulated under the respective Acts. Thus the 3
R.K. Electricals vs. DCIT deduction u/s 36(1)(va) of the Act can be allowed only if the employees' share in the relevant funds is deposited by the employer before the due date stipulated in respective Acts". In this case, it is noteworthy to mention that the appeal of the assessee was heard on 20-09-2022 and the Bench simultaneously considered the written submission dated 07-09-2022 filed by the ld. Counsel of the assessee but the ld. DR has not raised the decision of Hon’ble Supreme Court in the case of Checkmate Services (P) Ltd. as it was pronounced on 12-10-2022. Hence, in this view of the matter, the Bench now feels that the decision delivered by Hon’ble Supreme Court in the case of Checkmate Services (P) Ltd. is applicable in the present case. Accordingly, the bench recalls its order dated 18-10-2022
and direct the Registry to fix the appeal for hearing in regular course. Thus the Misc. Application of the Department is allowed.
4.0 In the result, the Misc. Application filed by the Department is allowed.”
After restoration of the appeal to its original number, notices were issued to the assessee-appellant , but none appeared to represent the appellant in this appeal. Even today, none has appeared on behalf of the ंचचमससंदज कमेचपजम ूंपज. Arguments have been advanced by Ld. DR for the Revenue.
Aतहनउमदजे ीमंतक. Fपसम चमतनेमक.
Discussion
4. Assessee-appellant claims itself to be a firm. On 15.10.2018, the assessee filed income tax return for the assessment year 2018-19,
Assessment came to be completed on 22.08.2019, after disallowing
Employees provident fund- contributions to the tune of Rs. 4,79,558/- made by the assessee. The assessee is said to have filed rectification u/s 154 of the Act, but could not get any respite.
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5. Intimation order u/s 143(1) of the Act is of 22.08.2019. Feeling aggrieved by the aforesaid disallowance, the assessee presented appeal raising the only ground that the subject payments were made by the assessee on or before filing of the Income Tax Return, and as such, it was मदजपजसमक जव कमकनबजपवदे.
6. Learned CIT(A) dismissed the appeal filed by the assessee, while observing that the ground put forth by the appellant that EPF payments were made on or before filing of the ITR, was not acceptable, the reason being that the Employees contribution falls u/s 36(1) (va) of the Act, and such contribution is required to be made as per due date under the relevant
Act.
7. Ld. DR for the Revenue has referred to the provisions of section 36(1) (va) of the Act, and also to the decision in case of Checkmate
Services Pvt. Ltd. vs. CIT-1, Civil Appeal No. 2833/2016 dated
12.10.2022, and contended that the assessee, being the employer, was तमुनपतमक जव कमचवेपज म्उचसवलममे बवदजतपइनजपवद जवूंतके म्च्F इमवितम जीम कनम
date as prescribed under Section 36(1) (va) of the Act r.w.s. 2(24)(x) of the Act, and not before filing of the return of income u/s 36(1)(v) of the Act. Ld.
DR for the Revenue has further contended that in this matter, the assessee
मउचसवलमत ींअपदह दवज कमचवेपजमक जीम म्उचसवलममे बवदजतपइनजपवद ंउवनदजे इमवितम
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8. Section 36(1)(va) of the Act reads as under:-
“[ any sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. [ Inserted by Act 11 of 1987, Section 9 (w.e.f.
1.4.1988).]”
Ld. DR for the Revenue has drawn our attention to the details regarding deposit of EPF by the assessee for the financial year 2017-18, corresponding to the assessment year under consideration, and pointed out that in the said statement, the assessee has depicted the due date of deposit of contribution of the employees with actual date of deposit. Ld. DR has contended that since the said amounts of contribution of the मउचसवलममे जवूंतके म्च्F ूमतम दवज कमचवेपजमक वद जीम कनम कंजम कमचपबजमक therein, Learned CIT(A) rightly upheld the intimation order. 10. Hंअपदह हवदम जीतवनही जीम ंइवअम ेंपक ेजंजमउमदज ेनइउपजजमक इल जीम 11. In the given situation, while applying decision by Hon’ble Apex Court in Checkmate Services Pvt. Ltd.’s (supra), it can safely be said that Learned CIT(A) was justified in upholding intimation order, as regards late deposit of the amounts of Employees contribution towards EPF. Result 12. In view of the above discussion, this appeal deserves to be कपेउपेेमक. ैंउम पे ीमतमइल कपेउपेेमक. File be consigned to the record room after the needful is done by the office.
Order pronounced in the open court on 08/01/2025. ¼राठाैड+ कमलेश जयन्तभाइर् ½
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(RATHOD KAMLESH JAYANTBHAI)
(NARINDER KUMAR)
लेखा सदस्य @Aबबवनदजंदज डमउइमत न्यायिक सदस्य@Jनकपबपंस डमउइमत
ज्ायपुर@Jंपचनत
fnukad@Dated:- 08/01/2025
*Santosh
आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
1. The Appellant- R.K. Electricals, Rawatbhata.
2. प्रत्यथीर्@ ज्ीम त्मेचवदकमदज- क्ब्प्ज्ए ब्च्ब्ए ज्ञवजं..
3. आयकर आयुक्त@ ज्ीम सक ब्प्ज्
4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत
5. xkMZ QkbZy@ Guard File ITA No. 333/JPR/2022)
आदेशानुसार@ ठल वतकमतए
सहायक पंजीकार@Aेेजज. त्महपेजतंत