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Before: Shri S.S. Viswanethra Ravi & Shri Manoj Kumar Aggarwal
O R D E R
PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER:
This appeal by the assessee is against the order dated 16.11.2023 passed by the NFAC [Addl./JCIT(A), Varanasi] for the assessment year 2019-20. 2. Ground No. 1 raised by the assessee challenging the action of ld. Addl./JCIT(A) in treating employees’ PF contribution as income by invoking the provisions of section 36(1)(va) of the Income Tax Act, 1961 [“Act” in short].
We note that the assessee remitted employees’ PF contribution within the due date of filing of return of income under section 139(1) of the Act. The CPC disallowed the said amount for not depositing the same within due date as prescribed under relevant Act. The Addl./ JCIT(A) confirmed the said order.
The fact remain admitted that the assessee deposited employees’ PF contribution belatedly, not within due date prescribed under relevant statute and in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. v. CIT [2022] 143 taxmann.com 178 (SC), the contribution, though deposited within the due date of filing of return of income under section 139(1) of the Act, it is the income of the assessee for not depositing the same within the due date of relevant statute. Therefore, we find no infirmity in the order of the Addl./JCIT(A) in considering the said employees’ PF contribution as income of the assessee. Thus, ground No. 1 raised by the assessee is dismissed.
Ground No. 2 raised by the assessee in challenging action of Addl./JCIT(A) in confirming the disallowance of capital profit pertaining to sale of land as business income. The ld. AR Shri P. Selva Moorthy, C.A., contended that the disallowance as confirmed by the Addl./JCIT(A) is not justified since the said item is already considered for taxation appropriately under the head “capital gains”, which is also declared in the return of income. The ld. AR drew our attention to the paper book and referred to copy of return of income as well as computation of income.
On perusal of the impugned order, we note that the Addl./JCIT(A) did not consider the offering of capital profit under capital gains, however, confirmed the order of the Assessing Officer for non-prosecution which is clear from para 5 of the impugned order. Therefore, taking into consideration of the facts and circumstances of the case and the submissions of the ld. AR and ld. DR, in the interest of justice, we deem it proper to remit the matter to the file of the Addl./JCIT(A) for fresh consideration and pass order in accordance with law. The assessee is at liberty to file evidences, if any, in support of its contention. Thus, ground No. 2 raised by the assessee is allowed for statistical purposes.