RANJIT PAUL,KOLKATA vs. ADIT, CPC, BENGALURU
What did the Tribunal hold?
The Tribunal directed the AO to verify the assessee's contention that a portion of the disallowed amount included employer's contribution. If correct, the disallowance should not be made for the employer's contribution.
What were the facts?
The assessee's appeal concerned a disallowance of Rs. 7,21,831/- made under Section 36(1)(va) for late deposit of employees' contribution to ESI & PF. The Supreme Court's decision in Checkmate Services P. Limited was cited, which held that disallowance is attracted for late deposits of employees' contributions.
What were the issues?
Whether disallowance under Section 36(1)(va) applies to employer's contribution to ESI/PF when deposited late, and if the disallowed amount correctly segregates employee and employer contributions.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: SRI SANJAY GARG & SRI GIRISH AGRAWAL
order
: February 7th, 2024 ORDER
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [in short ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (in short the 'Act') dated 24.11.2021 for AY 2018-19.
The sole issue involved in this appeal is relating to the disallowance made by the lower authorities of Rs. 7,21,831/- made u/s 36(1)(va) of the Act on late deposit of employees’ contribution towards to ESI&PF. 3. Earlier the appeal of the assessee was allowed by the Tribunal vide order dated 14.07.2022. However, the said order was recalled vide order dated I.T.A. No.: 136/KOL/2022 Assessment Year: 2018-19 Ranjit Paul. 02.05.2023 in an MA No. 48/KOL/2022 moved by the Department in the light of the decision of the Hon'ble Supreme Court in the case of Checkmate Services P. Limited vs. CIT reported in 2022 LiveLaw (SC) 838 wherein the Hon'ble Supreme Court has held that the disallowance is attracted u/s 36(1)(va) read with Section 2(24)(x) of the Act in respect of late deposit of employees’ contribution to ESI&PF i.e. after the due date prescribed for such deposit in the respective statutes relating to such funds, irrespective of the fact that the said contribution has been deposited before the last date of filing of return of income. 4. The matter is accordingly heard afresh. The only contention now raised by the ld. Counsel for the assessee has been that the tax auditor while mentioning the amount of contribution made towards ESI/PF has also included the employer’s contribution to such funds. He in this respect has submitted that out of the amount of Rs. 7,21,831/- an amount of Rs. 1,26,488/- was made towards employer’s contribution to ESI and further an amount of Rs. 2,87,232/- was relating to employer’s contribution to PF. He has submitted that the disallowance in respect of employer’s contribution, if deposited before the due date of filing of the return, is not attracted u/s 36(1)(va) of the Act. The AO is accordingly directed to look into and verify the aforesaid contention of the assessee and if such contention is found to be correct, not to make disallowance relating to the employer’s contribution to ESI&PF. 5. In the result, the appeal of the assessee is treated as partly allowed for statistical purposes. Kolkata, the 7th February, 2024. Sd/- Sd/- [Girish Agrawal] [Sanjay Garg] Accountant Member Judicial Member Dated: 07.02.2024 Bidhan (P.S.)
More judgments on Section 36(1)(va)
- Vco Consulatatns and Sevices Private… vs ITO, Corporate Ward 3(3), ChennaiITA 2145/CHNY/2025[2019-20]Status: Disposed16 Oct 2026AY 2019-20
- R K Swamy Limited, Chennai vs DCIT Non Corporate Circle 10(1), ChennaiITA 504/CHNY/2026[2018-19]Status: Disposed14 Oct 2026AY 2018-19
- M/S. R.K. Swamy Ltd., Chennai vs DCIT, Ncc-10(1), ChennaiITA 2822/CHNY/2025[2020-21]Status: Disposed14 Oct 2026AY 2020-21
- Rajesh Maru, Mhow vs ITO-5(1), IndoreITA 839/IND/2025[2023-2024]Status: Disposed12 Oct 2026AY 2023-2024
- Rajesh Maru, Mhow vs ITO-5(1), IndoreITA 838/IND/2025[2022-2023]Status: Disposed12 Oct 2026AY 2022-2023
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