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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
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.
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)
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.
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)
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.
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.
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.
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.
In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open court on 07.08.2023