GANGOL SAHKARI DUGDH UTPADAK SANGH LTD.,MEERUT vs. ITO WARD-1(2), MEERUT

Heard and perused the record.

The issue in both the appeals arises out of the addition made during assessment under Section 143(1)(a) of the Act on the basis that EPF amount arising out of employees contribution was not deposited within the due date.

On hearing learned authorized representative, it comes up that reliance is still placed on judgment of Hon'ble Supreme Court in the case of CIT vs. Alom Extrusions Ltd. (2009) 319 ITR 306. Even in the grounds, it is mentioned that the disallowance is against the provisions of section 43B and the aforesaid referred decision of Hon'ble Supreme Court. Learned authorized representative has submitted that disallowance in any way could not have been made under Section 143(1) of the Act as it was a debatable issue.

5. We are of the considered opinion that the grounds as raised and the submissions of learned Representative have no substance in the light of the judgment of Hon'ble Supreme Court of India in the 3 ITA Nos.3836 & 3837/Del/2024 case of Commissioner of Income Tax-I v Checkmate Services P. Ltd., Tax Appeal No. 680 of 2014, dated 14.10.2014 wherein the said judgment of CIT vs. Alom Extrusions Ltd. (supra) is considered and it is held that the deposit of employees share has to be as per the due date under the relevant statue only and section 43B of the Act is not applicable.

After giving thoughtful consideration to the matter on record and the admitted facts of late deposit of the contributions, the Bench is of the considered view that there is no force in the contention of the ld. AR as that the judgement of the Hon'ble Supreme Court in the case of 'Checkmate Services Case' has settled the issue against the tax payers by holding that the payments towards employee's contribution to Provident Fund after the due date prescribed under the relevant statute is not allowable as deduction u/s 36(1)(va) of the Act. The Mumbai Bench order in the case of M/s P.R. Packaging Service (supra) has been considered in another order in the case Deutsche India Pvt. Ltd. vs. ACIT in order dated 22.02.2023 and relying another order in the case of Nissan Enterprises Ltd. vs. DCIT, ITA No.3270/Mum/2022, order dated 17.02.2023 the Co-0rdinate bench has held as under:- "9. We find that, recently, in Nissan Enterprise Ltd. vs DCIT-CPC, in ITA No.3270/Mum/2022, the Tribunal vide order dated 17/02/2023, after considering the aforesaid decision in P.R. Packaging Service (supra) held that pursuant to the decision of the Hon'ble Supreme Court in Checkmate Services (P.) Ltd. (supra), the claim of deduction towards employee's contribution to PF & ESI made by the taxpayer becomes an incorrect claim warranting prima facie adjustment under section 143(1) of the Act. The relevant findings in the aforesaid decision are as under:- "3.1. The ld. AR vehemently relied on the decision of the Co- ordinate Bench of this Tribunal in the case of P.R. Packaging Services in ITA No.2376/Mum/2022 dated 07/12/22 (authored by the undersigned) wherein this issue has been decided in favour of the assessee. We find that the said decision was rendered by applying the provisions of Section 143(1)(iv) of the Act. Pursuant to the aforesaid decision of the Hon'ble Supreme Court, the claim of deduction towards employee's contribution to PF & ESI made by the assessee becomes an incorrect claim warranting prima facie 3.2. In view of the aforesaid observations and respectfully following the decision of the Hon'ble Supreme Court referred to supra, the grounds raised by the assessee are hereby dismissed"

Further, the coordinate Benches of ITAT Delhi in Aroma Aromatics and Flavours vs. CIT(A) in order dated 30.11.2022 and in Savleen Kaur & Ors., ITA No.2249/Del/2022, order dated 09.01.2023, have held that the Hon'ble Supreme Court judgement in the case of 'Checkmate Services Case' is applicable also to the cases of adjustment done by the CPC u/s 143(1) of the Act. Thus, this Bench is not inclined to entertain the plea as raised by the ld. AR and there was no error in the findings of the ld.CIT(A) in following the judgement of the Hon'ble Supreme Court in the case of 'Checkmate Services Case'. The grounds have no substance.”