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Income Tax Appellate Tribunal, PANJI BENCH, PUNE
Before: HON’BLE SHRI S. S. GODARA & SHRI G. D. PADMAHSHALI
द्वारा / Appearances Assessee by : Adv. Ms Eesha Dukle Revenue by : Shri N. Shrikanth सुनवाई की तारीख / Date of conclusive Hearing : 12/07/2023 घोषणा की तारीख / Date of Pronouncement : 01/08/2023 आदेश / ORDER PER G. D. PADMAHSHALI, AM; The assessee by the present appeal challenges the order of National Faceless Appeal Centre, Delhi [for short ‘NFAC’] dt. 28/09/2021 passed u/s 250 of the Income Tax Act, 1961 [for short ‘the Act’] confirming the disallowance made u/s 36(1)(va) by the Deputy Commissioner of Income Tax, Central Processing Centre, Bengaluru [for short ‘CPC’] u/s 143(1) of the Act for assessment year [for short ‘AY’] 2018-19.
ITAT-Panaji Page 1 of 4
The sole & substantive ground of present appeal is directed against disallowance made u/s 36(1)(va) on the basis of information reported in tax audit report [for short ‘TAR’] filed by the assessee.
Concisely stated the facts of the case are 3.1 The assessee filed its return of income for AY 2018-19 on 04/10/2018 declaring total income of ₹40,95,320/-. The said return of income was processed u/s 143(1) of the Act with an addition u/s 36(1)(va) of the Act thus determined the total income at ₹54,19,3330/- vide intimation dt. 30/09/2019. While doing so, the Ld. AO made a disallowance u/s 36(1)(va) of the Act with sum of ₹13,24,009/- on account of delayed payment of employees’ contribution towards PF & ESI.
3.2 Aggrieved by the aforestated additions u/s 36(1)(va) of the Act, assessee carried the disallowance before first appellate authority and in the event of unsuccessful attempt, the assessees brought up the matter in appeal before the Tribunal against said disallowance alleging the action of both the tax authorities below as bad in law.
It is an undisputed fact that, the TAR filed by the assessee indicated the prescribed due dates of payment to the relevant funds under the respective Acts relating to employees share. It is also an admitted fact that the said amounts were deposited by the assessees beyond such prescribed due dates but before the filing ITAT-Panaji Page 2 of 4
Magsons Supercentre 139(1) of the Act. The case of the assessee before the lower tax authorities was that such payments made on or before the due date as per section 139(1) of the Act amounts to sufficient compliance of the provisions in terms of section 43B of the Act, and hence not calling for any disallowance. Per contra, the Department has set up a case that the disallowance is warranted and inevitable because delayed deposit of the employees share beyond the prescribed due date under the respective Act is unsheltered by section 43B of the Act. In dispelling the contention of the appellant, the Ld. DR pressed into service the decision of Supreme Court in the case of ‘Checkmate Services P. Ltd. & Ors Vs CIT & Ors’ reported in 448 ITR 518.
Nota bene, a similar issue came before the co-ordinate bench of the Tribunal in ‘Goa Electronics Ltd’ (ITA No. 41/PAN/2021), ‘Muktar Automobiles Pvt. Ltd.’, (ITA No. 47/PAN/2021) wherein the Tribunal following the judgement of Hon’ble Supreme Court rendered in ‘Checkmate Services P. Ltd. & Ors Vs CIT & Ors’ (supra), has after an sumptuous discussion adjudicated the issue in favour of Revenue and against the assessee by upholding the disallowance made u/s 36(1)(va) of the Act where the assessee failed to deposit employee’s share or contributions to any provident fund or superannuation fund or any fund set up under the provisions of the Employees State Insurance Act, 1948 (34 of 1948), or any other fund for the welfare of such employees as the case may be, on or before the prescribed due date under the respective Act. ITAT-Panaji Page 3 of 4
We contentedly note that, Ld. AR Ms Eesha Dukle appearing on behalf assessee has fairy submitted that, the subject matter of adjudication is no more res-Integra in the light of Hon’ble Supreme Court decision in ‘Checkmate Services P. Ltd. & Ors Vs CIT & Ors.’ (Supra) and following the same the co-ordinate bench has adjudicated the issue in favour of revenue in ‘Goa Electronics Ltd’ (Supra), ‘Muktar Automobiles Pvt. Ltd.’ (supra), ‘Sonigara Gold LLP Vs ITO (ITA No. 179/PUN/2023)’, ‘ACIT Vs SMS Ltd (ITA No. 24/NAG/2022)’, and in ‘Purushottam Kumar Agrawal Vs ACIT (ITA No. 42/RPR/2022)’.
Since the issue in present case is similar to that of ‘Goa Electronics Ltd’ (supra), in the light of Hon’ble Apex Court judgement in ‘Checkmate Services P. Ltd. & Ors Vs CIT & Ors.’ (Supra), we hold that the Ld. NFAC was justified in sustaining the adjustment carried out u/s 143(1) by CPC on account of delayed deposit of employees share to the relevant funds; thus there remains open no dispute.
Resultantly, the appeal of the assessee is DISMISSED. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Tuesday 01st day of August, 2023.