2022 (7) TMI 319 - AT - Income Tax

Tribunal directs verification of pension non-deposit disallowance under Section 43B.

Calcutta Dock Labour Board Versus ACIT, Circle-40 Kolkata

The Tribunal partially allowed the appeal, directing the Assessing Officer to verify the disallowance of Rs. 46,06,60,582 under Section 43B for ... Disallowance for not depositing monthly pension - HELD THAT:- The alleged amount of monthly pension for Financial Year (in short 'FY') 2017-18 has been paid to the provident fund account before the due date of filing return of income and therefore, no disallowance is called for u/s. 43B - no details were filed before the first appellate authority even after being granted various opportunities. Therefore, in the interest of justice and being fair to both the parties and looking to the quantum of the addition and the claim being made by the assessee as an officer of Court that the alleged amount has been paid before the due date of filing return of income, we restore this issue to the file AO who shall verify the veracity of the claim of the assessee of having paid the alleged amount duly supported by necessary receipt/challan of having paid the pension amount and if the claim of the assessee is found to correct in light of provision of Section 43B of the Act, then the said disallowance may be deleted and if found otherwise then ld. AO can proceed in accordance with law. Disallowance towards PF & ESI - employees' contribution towards PF & ESI - Assessee's claim is that the same amount pertaining to FY 2017-18 has been deposited before the due date of filing return of income u/s. 139(1) - HELD THAT:- We find that this issue is no longer res-integra as held by this Tribunal in the case of Lumino Industries Ltd. [2021 (11) TMI 926 - ITAT KOLKATA] wherein a view was taken in favour of the assessee by the Tribunal after holding that the amendment brought in by Finance Act, 2021 w.e.f 01.04.2021, is prospective in operation and so will be in force from AY 2021-22 onwards and not retrospective. A/R brought to our notice the contents of the impugned order of ld. CIT(A) wherein it is noticed that the ld. CIT(A) has acknowledged that the assessee had made the remittance/payment of employees' contribution towards PF & ESI before the due date of filing of return of income. Therefore we are inclined to allow ground no. 3 of the assessee and direct the A.O. to delete the disallowance. Issues:1. Disallowance of Rs. 46,06,60,582 under Section 43B for non-deposit of monthly pension.2. Disallowance of Rs. 12,33,470 towards PF & ESI.Issue 1: Disallowance of Rs. 46,06,60,582 under Section 43B for non-deposit of monthly pension:The appellant challenged the disallowance of Rs. 46,06,60,582 under Section 43B for not depositing monthly pension. The appellant claimed that the amount was paid before the due date of filing the return of income and there was an inadvertent mistake in the tax audit report. The Tribunal noted that no details were submitted before the first appellate authority. Considering the claim made by the appellant and to ensure fairness, the issue was restored to the Assessing Officer for verification. If the payment is found to be made before the due date, the disallowance may be deleted; otherwise, further action can be taken.Issue 2: Disallowance of Rs. 12,33,470 towards PF & ESI:The appellant contested the disallowance of Rs. 12,33,470 for employees' contribution towards PF & ESI. The appellant argued that the amount had been paid before the due date of filing the return of income, relying on a Tribunal decision. The Tribunal referred to a previous case where it was held that the amendment regarding employees' contribution was prospective from AY 2021-22 onwards. The Tribunal relied on legislative intent and judicial precedents to conclude that the disallowance should be deleted since the contribution was made before the due date. Therefore, the Tribunal allowed the appellant's appeal on this issue, directing the Assessing Officer to delete the disallowance.In conclusion, the Tribunal partially allowed the appeal, allowing the appellant's contentions regarding both the disallowances. The disallowance of Rs. 46,06,60,582 under Section 43B for non-deposit of monthly pension was restored to the Assessing Officer for verification, while the disallowance of Rs. 12,33,470 towards PF & ESI was directed to be deleted based on legislative intent and judicial precedents.