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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ : NEW DELHI
PER SHAMIM YAHYA, ACCOUNTANT MEMBER :
This appeal by the assessee is directed against the order of National Faceless Appeal Centre (NFAC) dated 27.05.2022 pertaining to AY 2017-18.
The assessee has raised various grounds of appeal which read as under :-
“1. On the facts and circumstances of the case, the order passed by the learned CIT (Appeal) is bad both in the eye of law and on facts.
./2022 2. On the facts and circumstances of the case, the Appeal dismissed by the CIT(A) is untenable in the eyes of law as no satisfaction was recorded by the CIT (A) in dismissing the appeal by sustaining the addition made by the assessing officer.
3. On the facts and circumstances of the case, the learned CIT (A) has erred by rejecting Appeal filled by Assessee without affording an opportunity of being heard and by denying to the assessee the "Principal of natural Justice".
4. On the facts and circumstances of the case, the learned CIT (A) has erred by dismissing the appeal for delay in filling the Appeal. as the appeal had been filled after a delay of 302 days before the CIT(A).
5. That in the facts of the case and as per law, the learned CJT(A) erred in upholding the additions/disallowances made by CPC in the returned income while processing the ITR under section 143(1) of the IT Act.
That the Ld. CIT(A) erred in the facts and in law in sustaining the addition/disallowances of Rs.90,64,370/- for the PF and ESIC of the employees which was deposited after the due date under the PF and ESIC Act but before within the due date for filing of the Income Tax Return under section 139(1) of the IT Act.
That the Ld, CIT(A) erred in the facts and in law in sustaining the addition/disallowances of Rs.90,64,370/- as it is against the dictum laid down b) the Hon’ble Jurisdictional High court in the case of PCIT Vs. pro Interactive Service India Pvt. Ltd., dated 10.09.2018 and CIT vs. AIMIL Ltd. 321 ITR 508 (Delhi High Court).
That the Ld. CIT(A) erred in the facts and in law in sustaining the addition/disallowances of Rs.90,64,370/- by holding that the amendment and explanation in section 36(1)(va) of the Income Tax Act by the Finance Act. 2021 is clarificatory in nature and thus it will not be applicable for the A.Y. 2017-18.
./2022 9. That the Ld.CIT (Appeals) had failed to consider the submissions made by the Assessee and has passed the impugned order without appreciating the evidence already placed on record and the submissions made by the Appellant. The Ld. CIT (Appeals) failed to appreciate the merits of the case and passed the impugned order with a pre-meditated mindset.
That the above said addition has been made by indulging in surmises, conjectures and without bringing any material on record.
On the facts and circumstances of the case, the learned AO has erred both on facts and in law in charging interest under Section 234A, Section 2348 and Section 234C of the Act.
The above grounds of appeal are all independent and without prejudice to one another.”
Brief facts of the case are that in this case, in the order passed under section 143 (1) of the Income-tax Act, 1961 (for short 'the Act'), addition of Rs.90,64,374/- was made in the return of income for late deposit of employee contribution to EPF and ESI by the assessee as reported in the Form 3CD by the tax auditors. Assessee appealed before the ld. CIT (A). Ld. CIT (A) dismissed the appeal both on account of delay in filing of appeal as well as he upheld the merits of the case also by concluding as under :-
“39. In view of the above discussions, the totality of facts and circumstances of the case, judicial pronouncements cited above and respectfully following the decision of Hon'ble Jurisdictional ITAT (in the case of Vedvan Consultants Pvt. Ltd) and Hon'ble Jurisdictional High Court (in the case of Bharat Hotels Ltd.) the disallowance of Rs.90,64,374/- u/s. 36(1)(va), on the above
Against this order, assessee is in appeal before us. We have heard ld. DR for the Revenue and perused the records. None appeared on behalf of the assessee despite notice.
We find that the issue on merits is covered against the assessee by the decision of Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. (2022) 143 taxmann.com 178 wherein it has been held that if employee contribution of provident fund and ESI paid beyond due date as specified under the relevant Act then the same has to be added back in the income of the assessee. Respectfully following the precedent, we do not find any infirmity in the order of the ld. CIT (A). Accordingly, we uphold the same. 6. In the result, the appeal filed by the assessee stands dismissed. Order pronounced in the open court on this 19th day of April, 2023.