P P TELECELL MARKETING PVT LTD.,DELHI vs. DCIT, CIRCLE-14(1), NEW DELHI

before us by 374 days. The assessee had filed condonation petition

adducing the reason for the delay in filing of appeal. No serious

objections were made by the ld. DR before us on the point of delay.

Considering the reason adduced in the condonation petition, in the

peculiar facts and circumstances of the instant case, we are

inclined to condone the delay and admit the appeal of the assessee

for adjudication.

whether the ld. CIT(A) was justified in confirming the addition made

on account of employees contribution to PF / ESI in the facts and

circumstances of the instant case. We find that the assessee had

also raised Additional Grounds before us as under:-

“A. That on the facts of the case and in law, the CPC ought not to have made adjustment on a/c of variance based upon a statement made by the

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ITA No.2849/Del/2022 P. P. Telecell Marketing Pvt. Ltd. vs. DCIT Tax Auditor in Tax Audit Report (without mentioning that the reported amount is to be disallowed). B. That on the peculiar facts of the case and in law, the disallowance ought to have been made considering the month during which the salaries were actually disbursed (and not the month to which the salaries relate). It is requested that these additional grounds of appeal may kindly be admitted and the counsel of the appellant assessee may kindly be allowed to argue on these additional grounds of appeal too.” 4. We find that the ld.AR before us fairly stated that the original

grounds raised by the assessee are to be decided against him in

view of the decision rendered by the Hon’ble Supreme Court in the

case of Checkmate Services Pvt. Ltd Vs. CIT reported in 448 ITR

518 (SC) wherein it was held that the employees contribution to PF

/ ESI would have to be added as income of the assessee if the same

was not remitted within the due dates prescribed under the

respective PF / ESI Acts. However, the ld. AR made arguments

before us on Additional Ground B referred supra. We find that this

additional ground is a legal issue and hence they are admitted for

adjudication. We find that the ld. AR before us placed a chart

separately for PF and ESI stating that the addition to be made

would be only Rs 3,33,937/- as against Rs 53,89,319/-, if the

month in which salary was actually disbursed is taken into

account by the ld. AO. We find that this aspect of the issue was

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ITA No.2849/Del/2022 P. P. Telecell Marketing Pvt. Ltd. vs. DCIT not decided in the decision of Hon’ble Supreme Court referred

supra. The ld. AR placed reliance on the decision of Calcutta

Tribunal in the case of Kanoi Paper & Industries Ltd vs ACIT

reported in 75 TTJ 448 dated 28.5.2001 where this aspect of the

issue was considered. The ld. DR vehemently relied on the orders

of the lower authorities and argued that the issue of employees

contribution to PF/ ESI had already been decided in favour of the

revenue by the recent decision of Hon’ble Supreme Court referred

supra.

of the month in which salary was actually disbursed, we deem it fit

and appropriate to restore this issue to the file of ld. AO for

verification of those figures. On verification, if it is found that the

employees contribution to PF / ESI had been remitted within the

due date from the end of the month in which salary was disbursed,

then assessee would be entitled for relief and no addition could be

made thereon. The ld. AO is also directed to examine the

applicability of the decision of Calcutta Tribunal in 75 TTJ 448

referred supra while deciding the issue. Accordingly, the Additional

Ground B is allowed for statistical purposes. Page 4 of 6

ITA No.2849/Del/2022 P. P. Telecell Marketing Pvt. Ltd. vs. DCIT 6. The ld. AR vehemently relied on the decision of the Co-

ordinate Bench of Mumbai Tribunal in the case of P.R. Packaging

Services in ITA No.2376/Mum/2022 dated 07/12/22 wherein this

issue has been decided in favour of the assessee. We find that the

said decision was rendered by applying the provisions of Section

143(1)(iv) of the Act. Pursuant to the aforesaid decision of the

Hon’ble Supreme Court, the claim of deduction towards employee’s

contribution to PF & ESI made by the assessee becomes an

incorrect claim warranting primafacie adjustment u/s.143(1) of the

Act. Hence, the decision relied by the ld. AR would not advance the

case of the assessee. Accordingly, Additional Ground A raised by

the assessee is dismissed.

statistical purposes.

Order pronounced in the open court on 11th September, 2023.

Sd/- Sd/- (SAKTIJIT DEY) (M. BALAGANESH) VICE PRESIDENT ACCOUNTANT MEMBER Dated:11/09/2023 Pk/sps

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ITA No.2849/Del/2022 P. P. Telecell Marketing Pvt. Ltd. vs. DCIT