KAMARHATTY COMPANY LTD. ,KOLKATA vs. DCIT,CIR-1(1), KOLKATA. , KOLKATA
What did the Tribunal hold?
The Tribunal found merit in the assessee's contention regarding mistakes in the tax audit report. The issue was restored to the Assessing Officer for fresh examination with supporting documents.
What were the facts?
The assessee challenged the disallowance of PF and ESI contributions. The assessee claimed that the tax audit report contained mistakes regarding payment dates and classification of contributions.
What were the issues?
Whether the disallowance of PF and ESI contributions was justified given alleged errors in the tax audit report regarding payment dates and classification of contributions.
Which sections of the Income-tax Act were involved?
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- Checkmate Services Pvt. Ltd. v. CIT1,392 citing143 Taxmann.com 178 · 2022 · SC · Read judgment
Per Manish Borad, Accountant Member:
This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)”] dated 05.07.2023 for the AY 2014-15.
The assessee has taken the following grounds:
Assessment Year: 2014-15 Kamarhatty Company Ltd. 1. (a) That on the facts and in the circumstances of the case, the Ld. CIT(A)- NFAC erred in confirming the disallowance of contribution to PF and ESI amounting to Rs. 2,20,73,508/- when most of payments were well within the due date as per PF/ ESI Act. (b) That on the facts and in the circumstances of the case, the Ld. CIT(A)- NFAC erred in confirming the addition on account of delay payment of employee’s contribution to PF and ESI when the due date of making payment from 15 days from the close of the month is to be reckoned from the date of payment of salary / wages to employees and not from the date when the salary / wages become due to the employees. That on the facts and in the circumstances of the case, the Ld. CIT(A)- (c) NFAC erred in confirming the action of AO who invoked the provisions of section 43B read with section 2(24)(x) and 36(1 )(va) of the IT Act 1961 for alleged delay in depositing employee’s contribution to Provident Fund and ESI of Rs. 2,20,73,508/-.
2. That the appellant craves the leave to make any addition, alteration, modification of the grounds either before the start or in the course of appellate proceedings.
At the outset, the Ld. Counsel for the assessee submitted that the details of employer and employees contribution towards PF & ESI appearing in the audit report contains apparent mistakes with regard to date of payment and also at some places employer contribution has been mentioned as employees contribution. He also stated that such mistakes are only in few months. Prayer made that issue may please be restored to the file of Ld. AO for examining it
Assessment Year: 2014-15 Kamarhatty Company Ltd. afresh after considering the details which will be filed along with proof of payment of the employees contribution towards PF & ESI.
On the other hand, the Ld. D.R vehemently argued supporting the order of lower authorities.
We have heard the rival contentions and perused the record placed before us. In the instant appeal of the assessee is against the disallowance of contribution towards PF & ESI amounting to Rs. 2,20,73,508/- on account of delay of payment beyond the prescribed under the relevant PF & ESI Act. We find that subsequent to the judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. vs. CIT in [2022] 143 taxmann.com 178 (SC), the issue no more res-integra that if the employees contribution to PF & ESI is not deposited within the due dates prescribed u/s 36(1)(va) of the Act i.e. the due date under the relevant Welfare Legislation then such sum should be treated as income in the hands of employer u/s 2(24)(x) of the Act. Before us, the ld. Counsel for the assessee referring to the auditors certificate dated 5.9.2023 and 22.09.2023 as well as other document appearing in the Paper Book has claimed that there were certain mistakes in the Tax Audit report and more specifically in the details filed at serial no. 20(b) of the Form 3CD. Such mistakes are of two types: i) during some months date of payment as per the bank statement is prior to the payment date mentioned in the tax audit report. For instance for April,
Assessment Year: 2014-15 Kamarhatty Company Ltd. 2013 sum of Rs. 1890759/- which the assessee has claimed to have been paid on 17.05.2023 (duly supported by the bank statement), the payment date as per tax audit report is 21.05.2013. Similarly there are other instances of such mistakes of actual date of payment. It is claimed before us that if the actual date of payment as per the bank statement are considered major part of the disallowance would be deleted. Further it is also brought to our notice that for some months the employer contribution has been considered as employees contribution in the tax audit report.
Considering these facts, we find merit in the contention of the Ld. Counsel for the assessee and deem it fit to restore the issue of calculation of actual amount of disallowance u/s 36(1)(va) read with Section 2(24)(x) of the Act for delay in payment of employees contribution towards PF & ESI to the file of Ld. AO. We further direct the assessee to file all the relevant details including revised auditors certificate, bank statement, copy of PF & ESI challan and ledger account of employer and employees contribution before the AO so that the correct amount of disallowance u/s 36(1)(va) read with Section 2(24)(x) can be worked out. Needless to mention that appropriate opportunity of hearing should be provided to the assessee.
Assessment Year: 2014-15 Kamarhatty Company Ltd. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 9th February, 2024
Sd/- Sd/- (Anikesh Banerjee/ अ�नकेश बनज�) (Dr. Manish Borad/डॉ मनीष बोरड) Judicial Member/ �या�यक सद�य Accountant Member/ लेखा सद�य Dated: 9th February, 2024 SM, Sr. PS Copy of the order forwarded to: 1. Appellant- Kamarhatty Company Ltd., 16A, Brabourne Road, Tea Board, Dalhousie, Kolkata-700001 2. Respondent – DCIT, Circle-1(1), Kolkata 3. Ld. CIT(A)- NFAC, Delhi 4. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)
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