MJG SURAKSHA P. LTD.,DELHI vs. ITO,WARD 17(3), DEL-WARD-(36)(91), NEW DELHI

O R D E R PER C. M. GARG, J. M.:

1. 1. This appeal has been filed by the assessee against the order of the ld CIT(A)/ National Faceless Appeal Centre (NFAC), Delhi dated 18.10.2022 for AY 2020-21.

2. The assessee has raised the following grounds of appeal:-

1. On the facts and in the circumstances of the case and in law the ld CIT(A) NFAC erred in confirming the action of the ADIT, CPC, Bengalure in- i. disallowing an amount of Rs. 37,83,665/- of share of employee contribution towards EPF ignoring the fact that the same was deposited before the due date.”

3. The ld counsel of the assessee submitted that the assessee company along with return of income had filed an Audit Report in which inadvertently the dates were wrongly mistyped as under in Column No. 6 of point No. 20(b) of Audit Report Form 3CA. The ld counsel submitted that resultantly the adjustment was carried out by Page | 1 the CPC making addition/ disallowances in the hands of the assessee. The ld counsel submitted that after noticing these mistakes the company had approached the auditor for revising the audit report to correct the dates corresponding to the original material on record. The revised audit report showing corrected dates have been duly uploaded on the site which should be on record. Placing another copy of revised audit report Form 3CA, the ld counsel submitted that the matter may kindly be restored to the file of AO for examination and verifying the claim of the assessee that the disallowances has made by the CPC is no longer sustainable under the provisions of Income Tax Act, 1961 being erroneous as per material on record. Ld counsel further submitted that even otherwise the quantum of disallowance had made as warranted being excessive by a sum of Rs. 36,41,557/- on account of payments wrongly considered as not filing within the compliance limits. Therefore, the ld counsel submitted that the matter may kindly be restored to the file of AO for examination and verification of claim of assessee that no disallowance is called for in view of the actual date of amount paid to the respective employees and dates of payment to the concern ESI authority.

4. Replying to the above, the ld Sr. DR strongly opposed to the contention of ld counsel of assessee and submitted that the matte is no longer res integra after judgment of Hon'ble Supreme Court in the case of Checkmate. Placing rejoinder to the above the ld counsel again drew our attention towards order of coordinate bench of Tribunal in the case of Starline Clothing (P) Ltd Vs. DCIT in & 7658/Del/2019 for AY 2014-15 and 2015-16 dated 14.07.2023 and submitted that under identical facts and circumstances the issue has been restored to the file of AO for reexamination, verification of the claim of assessee. 5. On careful consideration of the above submission, first of all from the relevant part of the order of the Tribunal in the case of Starline Clothing (P) Ltd (supra) we note that the identical facts and circumstances the issue has been restored to the file of AO for afresh examination and verification. The relevant part of the said order are as follows:- 6. In view of the above, the sole issue of disallowance of an amount of Rs. 37,83,665/- of share of employee contribution towards ESI is restored to the file of AO for afresh adjudication after allowing due opportunity of hearing to the assessee without being influenced from the earlier assessment and first appellate order.