2019 (7) TMI 1934 - AT - Income Tax

Late PF/ESIC payments allowed, pending SC judgment. Ad-hoc expense disallowance dismissed.

Décor Home (India) Pvt. Ltd. Versus Assistant Commissioner of Income Tax, Circle-1 (1) (2), Surat.

The Tribunal set aside the disallowance of payments of PF/ESIC made belatedly for the Commissioner of Income Tax (Appeals) to decide in accordance with ... Disallowance of payments of PF/ESIC paid beyond the due date prescribed under the relevant statutes - HELD THAT:- We find that the issue is squarely covered against the assessee by the decision of CIT v. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it was held that section 43B does not apply to employees contribution. Only section 2(24)(x) read with section 36(1)(va) is applicable and therefore, employees contribution is disallowed if not paid within due dates prescribed under relevant Provident Fund /ESI Act. We are, therefore, of the considered opinion that there is no mistake in the orders of lower authorities in making disallowance in the light of the ratio laid down by the Hon’ble Gujarat High Court in the above case (supra). However, since the SLP has been admitted by the Hon'ble Supreme Court against the decision of Hon'ble High Court therefore, we set aside this matter to the file of the ld. CIT(A) with the direction that the matter be decide as per outcome of SLP, as and when matter will be decided by the Hon’ble Apex Court. Appeal of assessee allowed for statistical purposes. Issues:1. Disallowance of payment of Employee's share of PF and ESIC made belatedly.2. Ad-hoc disallowance on certain expenses.Issue 1: Disallowance of payment of Employee's share of PF and ESIC made belatedly.The appeal challenged the order of the Commissioner of Income Tax (Appeals) concerning the disallowance of Rs.2,04,282 pertaining to payments of PF/ESIC made beyond the due date. The Assessee argued that the disallowance was confirmed based on a judgment of the High Court, which was under appeal in the Supreme Court. The Tribunal noted that the High Court decision held that only section 2(24)(x) read with section 36(1)(va) is applicable, and employees' contributions are disallowed if not paid within due dates. Given the pending appeal in the Supreme Court, the Tribunal set aside the matter to the file of the CIT(A) for decision in accordance with the outcome of the Supreme Court's judgment. Therefore, the appeal ground was set aside for statistical purposes.Issue 2: Ad-hoc disallowance on certain expenses.The second ground of appeal, regarding the ad-hoc disallowance of Rs.1,47,522 on certain expenses, was not pressed before the Tribunal. Consequently, this ground of appeal was dismissed as not pressed. As a result, the appeal by the Assessee was partly allowed by the Tribunal.In summary, the Tribunal addressed the issues of disallowance of payments of PF/ESIC made belatedly and ad-hoc disallowance on certain expenses. The Tribunal set aside the first issue for the CIT(A) to decide based on the Supreme Court's decision in a related case. The second issue was dismissed as not pressed, leading to the partial allowance of the Assessee's appeal.