O P MARINE SERVICES PRIVATE LIMITED,GANDHIDHAM-KUTCH vs. THE ITO, WARD-2, GANDHIDHAM-KUTCH, GANDHIDHAM-KUTCH

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ITA 279/RJT/2022Status: DisposedITAT Rajkot10 February 2023AY 2018-19Bench: Ms. SUCHITRA KAMBLE (Judicial Member), SHRI WASEEM AHMED (Accountant Member)3 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that delayed payments of both employer's and employee's contributions to PF/ESIC are disallowable. This is in line with the Supreme Court's decision in the case of Checkmate Services Pvt. Ltd.

What were the facts?

The assessee company made delayed payments of both employer's and employee's contributions towards PF/ESIC. The Assessing Officer disallowed the entire amount of Rs. 21,66,999/-. The CIT(A) upheld this disallowance.

What were the issues?

Whether delayed payments of employer's and employee's contributions to PF/ESIC are disallowable under the Income Tax Act.

Which sections of the Income-tax Act were involved?

Section 36(1)(va)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT

Before: Ms. SUCHITRA KAMBLE & SHRI WASEEM AHMED

For Appellant: Ms. Astha Maniyar, AR
For Respondent: Shri B.D. Gupta, Sr. DR
Hearing: 24.01.2023Pronounced: 10.02.2023

PER SUCHITRA KAMBLE, JUDICIAL MEMBER :

1.

This appeal is filed by the Assessee against order dated 29.09.2022 passed by the CIT(A), National Faceless Appeal Centre (NFAC), Delhi for the Assessment Year 2018-19.

2.

The Assessee has raised the following grounds of appeal :-

“1. The Ld. CIT(A)-NFAC, Delhi has erred in facts and on law in confirming the action of the AO of disallowing a sum of Rs.10,57,486/- u/s. 36(1)(va) of the Act on account of delayed payments by Employer’s Contribution of PF/ESIC.

2. The Ld. CIT(A)-NFAC, Delhi has erred in facts and on law in confirming the action of the AO of disallowing a sum of Rs.11,07,179/- u/s.36(1)(va) of the Act on account of delayed payments by Employee’s Contributions of PF/ESIC”

3.

The assessee company furnished its return of income under Section 139 of the Act, 1961 on 29.09.2018. The Assessing Officer observed that the company in certain cases had not paid Employee’s contribution towards PF within the time limit as Assessment Year: 2018-19 Page 2 of 3 prescribed under Provident Fund Act. Therefore, the Assessing Officer made adjustment/disallowance of Rs.21,66,999/- as per the intimation passed under Section 143(1) of the Act dated 16.10.2019. The tax audit report as per the contentions of the assessee wrongly mentioned the sum of Rs.21,66,999/- whereas in reality the said sum represents Employer’s contribution as well and was the aggregate contribution to PF. Employee’s share was only Rs.11,53,536/-. Therefore, the assessee filed rectification under Section 154 of the Act which was rejected vide order dated 03.06.2020

4.

Being aggrieved by the order dated 03.06.2020 passed under Section 154 of the Act, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.

5.

The Ld. AR submitted that there is a component of Employer’s contribution of PF/ESIC which should have been allowed.

6.

As regards to ground no.2, the same is held against the assessee.

7.

The Ld. DR relied upon the Assessment Order and the order of the CIT(A) as well as order passed under Section 154 of the Act.

8.

We have head both the parties and perused all the relevant material available on record. As regards to ground no.1 relating to the Employer’s contribution, the said contribution was made after due date of the Statutory Limit. The decision of Hon’ble Apex Court in the case of Vinay Cements has been considered in the recent decision of Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. vs. CIT (CA No.2833 of 2016) order dated 12.10.2022. Therefore, ground no.1 is dismissed.

9.

As regards to ground no.2, the same is related to the Employee’s contribution which is a covered issue held against the assessee in the case of Checkmate Services Pvt. Ltd. (supra). The said issue is held against the assessee. Hence, ground no.2 is dismissed.

Assessment Year: 2018-19 Page 3 of 3

10.

In the result, appeal filed by the assessee is dismissed.

Order pronounced in the open Court on this 10th February, 2023

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