DCIT, CIRCLE-6, JAIPUR, NCRB, JAIPUR vs. KANDARP TRADELINKS AND SERVICES PRIVATE LIMITED, VKI, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA Nos. 560 & 561/JPR/2023 fu/kZkj.k o"kZ@Assessment Years : 2020-21 & 2021-22 cuke DCIT Kandarp Tradelinks and Services Vs. Private Limited, VKI, Jaipur Circle-06, Jaipur

LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCK 6158 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assessee by : None jktLo dh vksjls@Revenue by: Sh. A. S. Nehra (Addl.CIT) lquokbZ dh rkjh[k@Date of Hearing :10/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 18 /12/2023

vkns'k@ORDER

PER: DR. S. SEETHALAKSHMI, J.M.

These two appeals are filed by the revenue against the order of the National Faceless Appeal Centre, Delhi [herein after referred to as "NFAC/ld. CIT(A)"] dated 30.06.2023 for the assessment years 2020-21 & 2021-22.

2 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd 2. Since the issues involved in the revenue’s appeal for both the years are

almost identical and are almost common, except the difference in figure of

additions disputed, therefore, both these appeals were heard together with the

agreement of both the parties and are being disposed off by this consolidated order.

case for discussions as the issues involved in the lead case are common and

inextricably interlinked or in fact interwoven and the facts and circumstances of

other cases are identical except the difference in the amount in other assessment

year. The ld. DR did not raise any specific objection against taking that case as a

lead case. Therefore, for the purpose of the present discussions, the case of ITA

No. ITA No. 560/JP/2023 is taken as a lead case. Based on the above arguments

we have also seen that for both the appeals grounds are similar, facts are similar

and arguments were similar and therefore, were heard together and are disposed by

taking lead case facts, grounds, and arguments from the folder in ITA No.

560/JP/2023.

the revenue has assailed the appeal in ITA No. 560/JP/2023 on the following

grounds;

3 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd "1. On the facts and in the circumstances of the case, whether the Ld. CIT(A) was justified in deleting the disallowance of Rs. 309227/- made by the AO, CPC u/s 36(1)(va) of the IT Act during the processing of the IT return u/s 143(1) when the audit report clearly indicated that there was a delay in the deposit of the employees share in the relevant funds which was in contravention of the prescription of u/s 36(1)(va), the assessee chose not to offer the disallowance in computing the total income in the return, which rightly called for the disallowance in terms of sec 143(1)(a) of the Act.

order of the ld. CIT(A) are as under:-

7.I have carefully considered the appellant submissions, judicial pronouncement quoted by the Appellant and intimation u/s 143(1) of the Income Tax Act, 1961. That in the said case, CPC Bangalore has made the addition on account of late deposit of employees contribution to Employees State Insurance beyond due date prescribed under the ESI Act amounting to Rs. 3 ,09,337/- under section 36(1)(va) r.w.s. 2(24)(x) of the Income Tax Act, 1961. In this regard the appellant has contended that no disallowance has been made or indicated but only the due date and date of deposit of contribution has been reported. AO (CPC) simply picked the data from Clause 20(b) of Form 3CD while processing the return of income and added the same to Total Income.

That with regard to additional ground, the appellant has requested to admit the additional ground of appeal during the course of hearing. In this regard as per the provision contained in section 250(5) of the Income Tax Act, 1961, if the Commissioner (Appeal) is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable. In this connection, the additional ground of appeal raised by the appellant was considered in the light

4 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd of the above provision of law and it was found that the appellant has relied upon certain judgements of Tribunal including jurisdictional Tribunal where certain ratio/principles has been laid down on the identical issue as involved in the instant appeal and the judgement of Apex Court in the case of Checkmate Services Private Limited has been considered by the Tribunal. Since the above decision of the ITAT was not available at the time when the present appeal was preferred, therefore Omission of the same from the form of appeal cannot be held as wilful or unreasonable on the part of the appellant. Therefore, in view of above narrated facts it is clear that admitting the additional ground is necessary as it strike to the root of the matter pending, hence the same stand admitted.

In this case, the issue under consideration i.e., deposit of Employees contribution to ESI beyond due date prescribed under the relevant Act was a debatable and controversial issue on the date of processing of return in view of contrary rulings given by various High Courts. The matter attained finality only after decision of Supreme Court in the Case of Checkmate Services on 12th October 2022 whereas return was processed on 30.11.2021.

In this regard, the appellant has relied upon the order of the Hon'ble ITAT (Delhi) in Prowiz Mansystems Private Limited vs. ITO held that (Emphasis supplied) -

"It is well settled that any adjustments u/s 143(1) of Income Tax Act by way of intimation u/s 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of Section 143(1) of Income Tax Act. In this regard, we respectfully mention the order of Hon'ble Jurisdictional High Court in the case of ACIT vs. Haryana Telecom Pvt. Ltd. 14 laxman.com 122 (Delhi) Similar view was taken by Hon'ble Courts in the cases of George Williamson (Assam) Ltd. vs.CIT & Anr. [2006] 286 ITR 0533 (Gauhati), Tata Yadogawa Ltd. vs. CIT [2011] 335 ITR 0053 (Jharkhand), God Granites vs. Central Board of Direct Taxes & Ors. [1996] 218 ITR 0298 (Karnataka), Swamy Distributors vs. ACIT & Ors. [2003] 180 CTR 0290; 139 Taxman 0310 (Karnatka), CIT vs. Eicher Goodearth Ltd. [2008] 296 ITR 0125 (Delhi), Smt. Shanta Chopravs. ITO [2004] 271 ITR 0132 (Delhi): Kvaverner John Brown Engg (India) (P.) Ltd. vs. ACIT. [2008] 305 ITR 0103 (Supreme Court)."

5 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd Further the appellant has contended that the auditor's opinion is not conclusive with ref. to an issue and cannot be a sole factor for making additions u/s 43(1)(a)(iv) as the opinions/statements made by the auditor are not binding on the auditee. The auditor is duty bound to state the opinions/statements in Form 3CD but the auditee is nowhere bound to accept the opinions/statements made by the auditor. The same has been held by Hon'ble Tribunal (Mumbai) in Kalpesh Synthetics Pvt Ltd. Vs. Deputy Commissioner of Income Tax, CPC Bengaluru and K A Hospitality Private Ltd. Vs. Income Tax Department, CPC Bangalore.

Further, in similar case, the Hon'ble ITAT, Mumbai Bench in the case ofP.R. Packaging Service vs. ACIT-25(3), Mumbai ITA No. 2376 / M * um / 2022 wherein under identical set of facts, as in the case of the assessee company, additions made w.r.t Section 36(1)(va) under Section 143(1) were deleted by Hon'ble ITAT, Mumbai Bench, holding such adjustment in the processing to be outside the scope of Section 143(1)(a)(iv) The said decision has been rendered by Hon'ble ITAT, Mumbai Bench subsequent to the decision of Hon'ble Supreme Court in Checkmate Services Private Limited wherein it was held thatdisallowance u / s 36(1)(va) of the Act is applicable in case the payment to PF / ESIC fund is madeafter the due date as per relevant welfare Act. Relevant portion of the decision in case of P.R.Packaging Service vs. ACIT-25(3), Mumbai reproduced as under. –

Further, the appellant has relied upon the decision of Jurisdictional Bench of ITAT, Jaipur in the case of Paris Elysees India Pvt Ltd V/s DCIT, Circle-7, Jaipur (ITA no 357/JPR/2022) wherein on the identical facts, the Bench allowed the appeal of the assessee. The Hon'ble ITAT Jaipur bench has relied upon the judgement of Hon'ble Delhi bench's decision in the case of Garg Heart Center & Nursing Home Private Limited in ITA No. 1700 / D * el / 2022

6 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd Therefore, keeping in view the above narrated facts and circumstances, the submissions of the Appellant, various judgements and respectfully following the judgement of Hon'ble Jurisdictional Bench of ITAT, Jaipur in the case of Paris Elysees India Pvt Ltd V/s DCIT, Circle-7, Jaipur (ITA no 357/JPR/2022) whose facts are identical with the fact of the instant case, the ground of appeal is allowed and the disallowance of Rs. 3, 9, 227 / (- i) * s accordingly deleted.

In this regard, the appellant has raised the ground that "In the facts and under the circumstances of the case, Central Processing Centre has erred in law while processing return u/s 143(1)(a) by making an addition under section 2(24)(x) read with section 36(1)(va) of the Act of Rs. 309227.00 on account of late deposit of Employees contribution of ESI without appreciating the fact that the same was deposited before due date of filing of return and also by not following the binding decision of Jurisdictional High Court of Rajasthan that if the employees contribution is deposited before due date, no disallowance could be made u/s 36(1)(va)

Now, during the course of appellate proceeding the appellant has filed written submission vide letter dt. 30-05-2023 where he has requested that he does not want to press the above ground of appeal and sought permission to withdraw the above ground. The request of the appellant is being reproduced as under:

"In view of judgement of Supreme Court in the case of Checkmate Services V/S CIT, the appellant does not want to press this ground of appeal and seeks your permission to withdraw this ground of appeal."

Therefore, considering the fact mentioned in the request of the appellant, the permission to withdraw the above referred ground of appeal is hereby granted.

7 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd 7. The Bench has heard Ld DR and perused the materials available on record including the submissions of the assessee and case laws cited by both the parties. In this case, it is noted that the AO disallowed the amount Rs, 30,9227 /- u/s 36(1)(va) of the Act on the ground that the assessee failed to deposit the same on or before the due date as specified under Employees State Insurance Act, 1948 and Employees Provident Funds & Insurance Act, 1952 which has been confirmed by the ld. CIT(A). It is not imperative to repeat the facts of the case and the case laws cited by both the parties. The Bench has observed that the recently the Hon’ble Supreme Court has opined in the case of Checkmate Services Pvt. Ltd. vs CIT-1, 143 Taxmann.com 178 (SC)/Civil Appeal No. 2833 of 2016 held that the provision of Section 43B of the Act shall not apply to employee’s contribution to PF/ESI and the due date specified u/s 36(1)(va) of the Act shall apply for determination of deductibility of employee’s contribution to PF/ESI. The relevant portion of the Judgement of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vs CIT-1 (supra) is reproduced as under:-

‘’53. The distinction between an employer’s contribution which is its primary liability under law – in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers’ income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section

8 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts – the employer’s liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees’ income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under Section 43B. 54. In the opinion of this Court, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the employer’s obligation to deposit the amounts retained by it or deducted by it from the employee’s income, unless the condition that it is deposited on or before the due date, is correct and justified. The non- obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees’ contributions- which are deducted from their income. They are not part of the assessee employer’s income, nor are they heads of deduction per se in the form of statutory pay out. They are others’ income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount

9 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd which is otherwise retained, and deemed an income, is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date. If such interpretation were to be adopted, the non-obstante clause under 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 a condition for deduction. 55. In the light of the above reasoning, this court is of the opinion that there is no infirmity in the approach of the impugned judgment. The decisions of the other High Courts, holding to the contrary, do not lay down the correct law. For these reasons, this court does not find any reason to interfere with the impugned judgment. The appeals are accordingly dismissed.’’

Similar issue has also been decided by the Hon’ble Supreme Court in the case of PCIT vs Strides Arcolab Ltd. vide its order dated 29-11-2022 (Civil Appeal No.9009 of 2021 [2023] 147 taxmann.com 202 SC)]. The relevant head note is reproduced as under:- Section 36(1)(va), read with section 2(24) and 43B of the Income Tax Act – Employee’s contributions (PF/ESI) – High Court by impugned order held that Tribunal was correct in deleting disallowance made under section 36(1)(va) being employee’s contribution to Provident Fund and ESI even though same were not deposited in respective fund within stipulated time – Apex Court in case of Checkmate Services (P) Ltd. vs CIT [2022] 143 taxmann.com 178/ [2023] 290 Taxman 19/[2022] 448 ITR 518/2022 SCC Online Sc 1423, held that non obstante clause under section 43B could not apply in case of employee’s contribution which were deducted from their income and was not part of assessee-employer’s income and, thus,

10 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd said clause would not absolve assessee-employer from its liability to deposit employee’s contribution on or before due date as a condition for deduction. – Whether in view of the said judgement of Supreme Court, impugned order of High Court was to be set aside – Held , yes [Para 4) [In favour of Revenue]

For the sake of convenience and brevity of the case, the order passed by the

Supreme Court in the case of PCIT vs Strides Arcolab Ltd. (supra) is also

reproduced as under:-

‘’1.Leave granted.

Bench in favour of the Revenue in the case of Salveen Kaur Vs Income Tax Office vide its order darted 9th January 2023 (in IT Appeal Nos. 2197,2249, 2250 and

11 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd 2293 (Delhi) of 2022 – A.Y. 2017-18 to 2019-20 [2023] 147 taxmann.co. 402

(Delhi-Trib) by observing as under:-

‘’4. The undisputed fact in the captioned appeals is that there was a delay in depositing the employees’ contribution and the contribution has been deposited beyond the date stipulated under the relevantFund Act.

“8. When the law enacted by the legislature has beenconstrued in a particular manner by the Hon’ble jurisdictional High Court, it cannot be open to anyone in the jurisdiction of that Hon’ble High Court to read any other manner than as read by the Hon'ble jurisdictional High Court. The views expressed by the tax

12 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd auditor in sucha situation, cannot be reason enough to disregard the binding views of the Hon'ble jurisdictional Court. To that extent, the provisions of section 143(1)(a)(iv) must be read down. What essentially follows is the adjustments under section 143(1)(a) in respect of” disallowance of expenditure indicated in the audit report but not taken into account in computing the total income in the return” is to be read as, for example, subject to the rider “except in a situation in which the audit report has taken a stand contrary to the law laid down by Hon'ble Courts above”. That is where the quasi judicial exercise of dealing with the objections of the assessee against proposed adjustments under section 143(1), assumes critical importance in the processing of returns, also important to bear in mind the fact that what constitutes jurisdictionalHigh Court will essentially depend upon the location of the jurisdictional Assessing Officer. While dealing with jurisdiction for the appeals, rule 11(1) of the Central Processing of Returns Scheme, 2011 states that “Where a return is processed at the Centre, the appeal proceedings relating to the processing of the return shall lie with Commissioner of Income Tax (Appeals) [CIT(A)] having jurisdiction over the jurisdictional Assessing Officer” Thensitus of the CPC or the Assessing Office CPC is thus irrelevant for the purpose of ascertaining the jurisdictional High Court. Therefore, in the present case, whether theCPC is within the jurisdiction of Hon'ble Bombay High Court or not, as for the regular Assessing Officer of the assesseeand the assessee are located in the jurisdiction of Hon'bleBombay High Court, the jurisdictional High Court, for all matters pertaining to the assessee, will be Hon'ble Bombay High Court. In our considered view, it cannot be open tothe Assessing Officer CPC to take a view contrary to the view taken by the Hon'ble jurisdictional High Court- moreso when his attention was specifically invited to bindingjudicial precedents in this regard. For this reason also, the inputs in question in the tax audit report cannot be reason enough to make the impugned disallowance. The assesseemust succeed for this reason as well.”

13 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd “32. The scheme of the provisions relating to deductions, such as Sections 32 - 37, on the other hand, deal primarily with business, commercial or professional expenditure, under various heads (including depreciation). Each of these deductions, has its contours, depending upon the expressions used, and the conditions that are to be met. It is therefore necessary to bear in mind that specific enumeration of deductions, dependent upon fulfillment of particular conditions, would qualify as allowable deductions: failure by the assessee to comply with those conditions, would render the claim vulnerable to rejection. In this scheme the deduction made by employers to approved provident fund schemes, is the subject matter of Section 36 (iv). It is noteworthy, that this provision was part of the original IT Act; it has largely remained unaltered. On the other hand, Section 36(1)(va) was specifically inserted by the Finance Act,1987, w.e.f. 01-04-1988. Through the same amendment, by Section 3(b), Section 2(24) – which defines various kinds of “income” – inserted clause (x). This is a significant amendment, because Parliament intended that amounts not earned by the assessee, but received by it, - whether in the form of deductions,or otherwise, as receipts, were to be treated as income. The inclusion of a class of receipt, i.e., amounts received (or deducted from the employees) were to be part of the employer/assessee’s income. Since these amounts were not receipts that belonged to the assessee, but were held by it, as trustees, as it were, Section 36(1)(va) was inserted specifically to ensure that if these receipts were deposited in the EPF/ESI accounts of the employees concerned, they could be treated as deductions. Section 36(1)(va) was hedged with the condition that the amounts/receipts had to be deposited by the employer, with the EPF/ESI, on or before the due date. The last expression “due date” was dealt with in the explanation as the date by which such amounts had to be credited by the employer, in the concerned enactments such as EPF/ESI Acts. Importantly, such a condition (i.e., depositing the amount on or before the due date) has not been enacted in relation to the employer’s contribution (i.e., Section 36(1)(iv)). 33. The significance of this is that Parliament treated contributions under Section 36(1)(va) differently from those under Section 36(1)(iv). The latter (hereinafter, “employers’contribution”) is described as “sum paid by the assessee as an employer by way of contribution towards a recognized provident fund”. However, the phraseology of Section 36(1)(va) differs from Section 36(1)(iv). It enacts that “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.” The essential character of an employees’ contribution, i.e., that it is part of the employees’ income, held in trust by the employer is underlined by the condition that it has to be deposited on or before the due date.

14 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd

(Explanation to Section 36 (1) of the Finance Act)

12.2. In addition, contribution of the employees to the various funds which are deducted by the employer from the salaries and wages of the employees will be taxed as income within brackets insertion of new [clause (x) in clause (24) of Section 2] of the employer, if such contribution is not credited by the employer in the account of the employee in the relevant fund by the due date. Where such income is not chargeable to tax under the head “profits and gains of business or profession” it will be assessed under the head “income from other sources.” XXXXXX 44. There is no doubt that in Alom Extrusions, this court did consider the impact of deletion of second proviso to Section 43B,which mandated that unless the amount of employers’contribution was deposited with the authorities, the deduction otherwise permissible in law, would not be available. This court was of the opinion that the omission was curative, and that as long as the employer deposited the dues, before filing the return of income tax, the deduction was available.

“15. …It is important to note once again that, by Finance Act, 2003, not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare fundsof employee(s) on the other. This is one more reason whywe hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgement in Allied Motors (P)Limited (supra) is delivered by a Bench of three learned

15 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003 will operate retrospectively with effectfrom 1st April, 1988 [when the first proviso stoodinserted]. Lastly, we may point out the hardship and the invidious discrimination which would be caused to theassessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the Returns under the Income Tax Act and the date of payment falls after the due date under the Employees' Provident Fund Act,they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under Section 43B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April,2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under Section 43B of the Act. In our view, therefore, Finance Act, 2003,to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It is true that the Parliament has explicitly stated that Finance Act, 2003, will operate with effect from 1st April,2004. However, the matter before us involves the principle of construction to be placed on the provisions of Finance Act, 2003”. XXXX 48. One of the rules of interpretation of a tax statute is that if a deduction or exemption is available on compliance with certain conditions, the conditions are to be strictly complied with. Eagle Flask Industries Ltd Vs. Commissioner of Central Exercise 2004Supp (4) SCR 35. This rule is in line with the general principle that taxing statutes are to be construed strictly, and that there is no room for equitable considerations. 49. That deductions are to be granted only when the conditions which govern them are strictly complied with. This has been laid down in State of Jharkhand v Ambay Cements as follows: “23…. In our view, the provisions of exemption clause should be strictly construed and if the condition under which the exemption was granted stood changed onaccount of any subsequent event the exemption would not operate.

16 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, non-compliance with the same must result in cancelling the concession made in favour of the grantee, the respondent herein.” XXXX 53. The distinction between an employer’s contribution which is its primary liability under law – in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers’ income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts – the employer’s liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees’ income and held in trust by the employer. 54. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees’ contributions-which are deducted from their income. They are not part of the assessee employer’s income, nor are they heads of deduction per se in the form of statutory pay out. They are others’ income,monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, and deemed an income,is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date.”

17 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd

“143(1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of Section143, such return shall be processed in the following manner, namely;- (a) The total income or loss shall be computed after making the following adjustments, namely;- (i) Any arithmetical error in the return; (ii) An incorrect claim, if such incorrect claim is apparent from any information in the return; (iii) Disallowance of loss claimed, if return of the previous year for which set off of loss is claimed was furnished beyond the due date specified under sub-section (1) of section 139; (iv) Disallowance of expenditure [or increase in income]indicated in the audit report but not taken into account in computing the total income in the return; (v) Disallowance of deduction claimed under [section 10AA or under any of the provisions of Chapter VI-A under the heading “C.-Deductions in respect of certain income”, if] the return is furnished beyond the due date specified under sub-section (1) of section 139; or

(vi) Addition of income appearing in Form 26AS or Form 16A or Form 16 which has not been included in computing the total income in the return;”

13.1 A perusal of the afore-stated provisions show that at every stage in sub-section (1) of the Act, the return submitted by the assessee forms the foundation, with respect to which, if any of the inconsistencies referred to in various sub-clauses are found,appropriate adjustments are to be made. It is an open secret that hardly 3 to 5% of the returns are selected for scrutiny assessment, out of which, more than 50% are because of AIR Information under CASS and the Assessing Officer cannot go beyond the reasons for scrutiny selection and such cases are called Limited Scrutiny cases and only the remaining returns are taken up for complete scrutiny u/s 143(3) of the Act.

18 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd

13.2 Meaning thereby, that exercise of power under sub-section (2) of section 143 of the Act leading to the passing of an order under sub- section (3) thereof, is to be undertaken where it is considered necessary or expedient to ensure that the assessee has not understated income or has not computed excessive loss, or has not under paid the tax in any manner.

19 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd In view of the above deliberations and the decision taken by the Hon’ble Supreme

Court in the case of Checkmate Services (P) Ltd. vs CIT-1(supra), PCIT vs Strides

Arcolab Ltd. and also the decision of ITAT Delhi Bench in the case of Savleen

Kaur (supra), the Bench sustain the addition made by the ld. AO and ground No.

1 & 2 of appeal of the are allowed.

In the result, the appeal of the revenue is allowed,

No. 561-JP-2023 and we have heard the ld. DR and persuaded the materials

available on record. The bench has noticed that the issues raised by the department

in this appeal No. 561/JP/2023 is equally similar on set of facts and grounds.

Therefore, it is not imperative to repeat the facts and various grounds raised by

both the parties. Hence, the bench feels that the decision taken by us in ITA No.

560/JPR/2023 for the Assessment Year 2020-21 shall apply mutatis mutandis in

the case of Kandarp Tradelinks and Services Private Limited in ITA No. 561-JP-

2023 for the Assessment Year 2021-22.

In the result, both appeals of the revenue are allowed.

Order pronounced in the open court on 18/12/2023.

20 ITA Nos. 560 & 561/JPR/2023 DCIT vs. Kandarp Tradelinks and Services Pvt Ltd Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (Dr. S. Seethalakshmi) (RATHOD KAMLESH JAYANTBHAI) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 18 /12/2023 *Ganesh Kumar, PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- DCIT, Circle-06, Jaipur 1. izR;FkhZ@ The Respondent- Kandarp Tradelinks and Services Pvt Ltd., Jaipur 2. vk;dj vk;qDr@ The ld CIT 3. 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZQkbZy@ Guard File ITA Nos. 560 & 561/JPR/2023) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत