M/S LEISURE EXPORT WORLDWIDE,JALANDHAR vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1, JALANDHAR

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ITA 3/ASR/2022Status: DisposedITAT Amritsar07 August 2023AY 2017-185 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 upheld the CIT(A)'s decision, finding no infirmity in the order. The appeal was dismissed as not maintainable because the assessee failed to file the required order under Section 143(1) of the Act with Form 35.

What were the facts?

The assessee challenged the addition of Rs. 2,82,291/- on account of employee's contribution to FPF/ESI deposited late. The CIT(A) had dismissed the appeal due to defects in the appeal memo, specifically the absence of the order being appealed against.

What were the issues?

Whether the appeal filed before the CIT(A) was maintainable when the order being appealed against was not filed. The validity of an appeal memo with deficiencies.

Which sections of the Income-tax Act were involved?

Section 143(1),Section 246

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR

Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE

Hearing: 26.07.2023Pronounced: 07.08.2023

This appeal has been filed by the by the assessee against the order of the Ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 08.11.2021 in respect of Assessment Year: 2017-18.

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

Leisure Export Worldwide v. Asstt. CIT “1. That on facts and circumstances of the case, Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi has grossly erred in law in confirming addition of Rs. 2,82,291/- on account of employee’s contribution towards FPF/ESI deposited after due date but before due date of filing of Income Tax return. Addition confirmed is illegal and bad in law.

2.

That addition confirmed for late deposit of EPF/ESI of Rs. 2,82,291/- is opposed to the following judgments wherein it has been held that the assessee would be eligible for deduction in respect of such payments made before the due date of filing of return.

(a) CIT vs Lakhani India Ltd 232 CTR 0081 (P&H) (b) CIT vs Lakhani Rubber Works 232 CTR 0350 (P&H) (c) CIT vs Hernia Embroidery Mills P. Ltd 366 ITR 0167 (P&H)

3.

That on the facts and circumstances of the case, Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi has grossly erred in law in concluding that explanation 2 to section 36(1)(va) of the Act and explanation 5 to section 43 B of the Act inserted by Finance Act 2021 w.e.f 01.04,2021 i.e. A.Y. 2021-22 are clarificatory in nature and have retrospective application.

4.

That the Appellant requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed off.”

3. The appellant has challenged the order of the Ld. CIT(A) in confirming addition of Rs. 2,82,291/- on account of employee’s contribution towards FPF/ESI being deposited after due date of the provisions under the relevant Act but before due date of filing of Income Tax return. He has reiterated the same issues in the additional grounds of appeal and hence it is not required to admit separately for adjudication.

Leisure Export Worldwide v. Asstt. CIT 4. The appellant contended Ttat addition confirmed for late deposit of EPF/ESI of Rs. 2,82,291/- is opposed to the following judgments wherein it has been held that the assessee would be eligible for deduction in respect of such payments made before the due date of filing of return.

(a) CIT vs Lakhani India Ltd 232 CTR 0081 (P&H) (b) CIT vs Lakhani Rubber Works 232 CTR 0350 (P&H) (c) CIT vs Hernia Embroidery Mills P. Ltd 366 ITR 0167 (P&H)

5.

It is further submitted that on the facts and circumstances of the case, Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi has grossly erred in law in concluding that explanation 2 to section 36(1)(va) of the Act and explanation 5 to section 43 B of the Act inserted by Finance Act 2021 w.e.f 01.04,2021 i.e. A.Y. 2021-22 are clarificatory in nature and have retrospective application.

6.

Per contra, the Ld. DR stands by the impugned order. He contended that the issue is settled by the honourable apex court in the case of Checkmate India. However, the appeal filed by the assessee is rejected as not maintainable in view of deficiency in appeal memo filed in Form 35.

7.

We have heard the Ld. DR and carefully gone through the written submissions of the appellant assesse and material on record as well.

Leisure Export Worldwide v. Asstt. CIT Admittedly, the CIT appeal has dismissed the appeal of the assessee by pointing out deficiency in the appeal memo, stating that section 246 of the Act, provides the appealable orders against which any aggrieved assesse can file an appeal before the commissioner appeals. A mere communication letter from CPC which is not an order is not an appealable order before the CIT (A) and hence, the appeal filed by the appellant suffers from inherent defect in absence of the copy of the order required to be filed appealed against is not filed by the appellant. Accordingly, the Ld. CIT appeal has directed the assesse to first remove the defects by filing the copy of the order. In our view, the appeal of the assesse being defective appeal has rightly been rejected by the Ld. CIT appeal as not maintainable in the absence of the order passed by the CPC under section 143(1) of the Act.

8.

From the record, it is evident that this appeal was filed against the order u/s 143(1) dated 21-02-2019. But no such order was filed by the assessee with Form-35. Only a copy of letter dated 21-02-2019 from CPC was filed which is not an order. Hence, this appeal is liable to be rejected as invalid. However, the assesse may file the order against which this appeal is filed by filing fresh appeal in Form 35 before the Ld. CIT(A).

Leisure Export Worldwide v. Asstt. CIT 9. In the above view, we find no infirmity or perversity in the impugned order of the Ld. CIT(A) to the facts on record. Accordingly, as such, same is sustained.

10.

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

Order pronounced in the open court on 07.08.2023

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