TaxTMI 
TaxTMI 
2022 (10) TMI 157
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....the Act") by the ld AO, ADIT, CPC, Bangalore (hereinafter referred as the Ld. AO). 2. Brief fact of the case is that the Assessee filed its return of income on 14.10.2019 declaring total income of Rs. 2,35,09,620/-. The AO passed the order u/s 143(1) at a total income of Rs. 2,40,00,190/- after making an adjustment of Rs. 4,90,570 u/s 36(1)(va) of the Act on account of non-deposit of employee"s share of ESI and EPF before the due date. The Assessee filed appeal against the order before the ld CIT(A). The ld CIT(A) sustained the addition and rejected the arguments of the Assessee by observing that the reliance on the various case laws, even in Assessee"s own case is no longer acceptable in view of the clarificatory amendment brought out by ....
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....m 289 (SC). 6. It was submitted that after the Bharat Hotel Ltd (supra) case in PCIT Vs. Pro Interactive Service India Pvt. Ltd in ITA 98/2018 Hon"ble High court has held that "the legislative intent was/ is ensure that the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee's Provident Fund (EPD) and Employee's State Insurance Scheme (ESI) as deemed income of the employer u/s 2(24)(x) of the Act." 7. On the other hand the ld DR has submitted that there is no error in the findings of the Tax Authorities below. Reliance was placed on the judgment in CIT v. Bharat Hotels Ltd ( 2019) 410 ITR 417 ( Delhi) (HC) 8. In rega....
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....ngalore ITA No. 108 &109 / Jodh / 2021 for A.Y. 2018-19 and 2019-20, order dated 31.01.2022 11. The Co-ordinate Bench at Delhi in ITA No. ITA No.5570/Del/2017, M/s. Express Roadway V. ACIT Circle - 8(2) New Delhi, has discussed the relevant law as below : "We find that Hon'ble Delhi High Court in the case of CIT vs.AIMIL Limited (2010) 321 ITR 508 (Del) held has under: "17. We may only add that if the employees" contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make t....
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....that income includes any sum received by the assessee from his employees as contributions to any provident fund or superannuation fund or any fund set up under the provisions of the Employees" State Insurance Act, 1948 (34 of 1948), or any other fund for the welfare of such employees. It is clear from the above that as soon as employees contribution towards provident fund or ESI is received by the assessee by way of deduction or otherwise from the salary / wages of the employees, it will be treated as 'income' at the hands of the assessee. It clearly follows therefrom that if the assessee does not deposit this contribution with provident fund/ESI authorities, it will be taxed as income at the hands of the assessee. However, on makin....