ARVIND,GURUGRAM vs. ITO, WARD 1(3), GURGAON
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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Before: SHRI SAKTIJIT DEY
IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No. 371/Del/2023 Assessment Year: 2020-21
Arvind, Vs. ITO, Ward-1(3), House No. 116,Gali No.3, Gurugram Balaji Nagar, Village Garhi Harsaru, Gurugram, Haryana-122505 PAN :AVFPA0965N (Appellant) (Respondent)
Appellant by N o n e Respondent by Shri D.K. Srivastava, Sr. DR
Date of hearing 28.03.2023 Date of pronouncement 31.03.2023
ORDER This is an appeal by the assessee against order dated 13.12.2022
passed by National Faceless Appeal Centre (NFAC), Delhi for the
assessment year 2020-21.
When the appeal was called out for hearing, none appeared on
behalf of the assessee.
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It is observed, the notice of hearing issued to the assessee
through speed post has returned back un-served as the assessee was
not found in the given address.
Considering the nature of dispute and the fact that the issue is
covered by a decision of Hon'ble Supreme Court, I proceed to dispose
of the appeal ex parte qua the assessee after hearing learned
Departmental Representative and the material available on record.
The dispute in the present appeal is confined to disallowance of
deduction claimed in respect of delayed payment of employees
contribution to Employees State Insurance (ESI) and Provident Fund
(PF) amounting to Rs.23,32,110.
While processing the return filed by the assessee, the Centralized
Processing Centre (CPC) noticed that employees contribution to PF
and ESI was not paid within the due date prescribed under Section
36(1)(va) of the Act. Accordingly, the deduction claimed by the
assessee was disallowed.
Contesting the disallowance, the assessee preferred an appeal
before the first appellate authority. However, the disallowance was
sustained.
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I have heard learned Departmental Representative and perused
the material on record.
Undoubtedly, the assessee has not paid the employees
contribution to PF and ESI within the due date prescribed under the
statute governing the payment of PF and ESI. Though, there was delay
in payment of employees contribution to PF and ESI, however, the
assessee still claimed the deduction on the plea that the payment was
made within the due date of filing of return of income under Section
139(1) of the Act.
In my view, the aforesaid claim of the assessee is not acceptable
in view of the ratio laid down by the Hon'ble Supreme Court in case of
Checkmate Services Pvt. Ltd. Vs. CIT (2022) 143 Taxmann. 178
(SC).
In the aforesaid decision, the Hon'ble Supreme Court has held
that unless the assessee makes payment of employees contribution
towards PF and ESI within the due date prescribed under the relevant
statues, it has to be treated as assessee’s income under Section
2(24)(x) of the Act and no deduction can be claimed under Section
43B of the Act in respect of such payment. Thus, respectfully
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following the ratio laid down by the Hon'ble Supreme Court, as
discussed above, I uphold the disallowance. Ground raised is
dismissed.
In the result, the appeal is dismissed. Order pronounced in the open court on 31st March, 2023. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 31st March, 2023. Mohan Lal
