Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
The captioned appeal is filed by the assessee against the order of the
ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 20.04.2023 in respect of the assessment year 2020-21 challenging therein the order of the ld. CIT(Appeal) in upholding orders under section 143(1) of
2 ITA No. 172/Asr/2023 Ess Ess Kay Engg. Co. P. Ltd. v. Asstt. CIT the AO/CPC for disallowing the delayed payments of ESI/EPF of Rs.
90,40,450/- which claimed to be duly stood paid under section 43B of the
act before the due date of filing the income tax return under section 139(1)
of the Act.
None attended for the appellant and the adjournment application filed
by is found devoid of merits. Considering the issue EPF and ESI settled by
the apex court in the case of Checkmate service, Pvt. Ltd versus CIT- 1
(2022) Taxman.com. 178 (SC), it was decided to hear the ld. DR on the
facts of the case and adjudicate the appeal.
The appellant in the grounds contends that Learned, CIT Appeal was
wrong and unjustified in law and on facts to have upheld orders u/s 143(1)
of the ACT, for disallowing the delayed payments of ESI/EPF of
Rs.90,40,450/- which duly stood paid u/s 43B of the Act before the due
date of filing the Income Tax Return u/s 139(1) as submitted on 30th
January 2021 and the impugned intimation order have been passed
on18.12.2021, before any adverse judgment of the jurisdictional Court
including Supreme Court and thus intimation order as passed was without
any basis and premises. It is further stated in the grounds that the judgment
of the Hon'ble Supreme Court of India of 12.10.2022 in Civil Appeal No.
3 ITA No. 172/Asr/2023 Ess Ess Kay Engg. Co. P. Ltd. v. Asstt. CIT 2833 of 2016 in CHECKMATE SERVICE PRIVATE LIMITED vs
CIT1,(2022) Taxman. Com 178(SC), was for the order passed u/s 143(3) of
the Income Tax Act and therefore cannot be juxtapose be applicable to the
order passed by the DCIT, CPC, Bengaluru and he could not have made
an addition of the delayed deposit of the employees share of contribution
towards ESI/EPF u/s.143(1) of the Act. The appellant raised the contention
that the impugned additions/disallowances of Employee's share of ESI/EPF
was otherwise eligible for deduction u/s 37 of the Act being expenditure
incurred in due course of carrying on business activities and being a direct
charge of expenditure in carrying business activities. Reliance is this regard
is placed on decisions of the Hon'ble Courts:
i. CIT vs Birla Cotton Spinning & weaving Mills Limited/Birla Bros. (P) Limited (1971) 82 UTR 166 (SC); ii. Mysore Kirloskar Limited vs CIT 166 ITR 836 (Kerala) iii. ) SRMT Limited vs Dy. CIT(2005) 97 TTJ 580 Visakhapatnam Tribunal
In the grounds itself it is stated that various Hon'ble Appellate
Tribunals including jurisdictional ITAT Amritsar Bench have already held
that the said disallowances/additions as made u/s 36(1)(va) read with
section 43B of the Act, would be applicable from Asstt. Year 2021-22 and
4 ITA No. 172/Asr/2023 Ess Ess Kay Engg. Co. P. Ltd. v. Asstt. CIT onwards in view of the clear Legislature intent and provisions as brought
about in the Finance Act, 2021 w.e.f. Asstt. Year 2021-22 & onwards only,
and as such worthy CIT(A) was absolutely wrong and unjustified to have
upheld the impugned additions/disallowances.
Per Contra, the learned DR stands by the impugned order.
We have heard the rival contentions, perused the material on record,
impugned order and case law cited for us. We fully agree with the
adjustment to the total income or loss can be made only in the terms
indicated specifically u/s. 143(1) of the Act.
6.1 The Apex Court in the case of CHECKMATE SERVICE PRIVATE
LIMITED (Supra) has settle the issue of late payment of ESI/EPF to the
employees by observing that Where assessee-employer deposited amount
of employees contribution towards employees' provident fund and
employees' state insurance corporation beyond due date stipulated in
respective Acts, disallowance made under section 36(1)(va) was justified.
The appellant assessee has failed to rebut the Judgment of the Hon’ble
Apex Court (Supra) by any judgment of subsequent date. In view of that
matter, an aadjustment under section 143(1)(a) by means of disallowance
5 ITA No. 172/Asr/2023 Ess Ess Kay Engg. Co. P. Ltd. v. Asstt. CIT made for late deposit of employees' share to relevant funds beyond date
prescribed under respective Acts was proper and justified under the law.
In the above view, we hold that there are no infirmity or perversity in
the decision of the Ld. CIT(A) to the fact on record. Accordingly, the
impugned order upholding orders under section 143(1) of the act, for disallowing the delayed payment of ESI and EPF of Rs. 90,40,450/- is here
by sustained.
In the result, the appeal of the assessee is dismissed.
Order pronounced in the open court on 23.08.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order