2023 (3) TMI 308

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....has taken the following grounds of appeal: "i. For that on a proper interpretation of the scope and ambit of the provisions of section 43B read with s. 36(1)(va) of the Income Tax Act, 1961, the ld. Commissioner of Income Tax (Appeals) - NFAC erred in upholding the action of the ld. Deputy Commissioner of Income Tax, CPC in resorting to the impugned disallowance of Rs. 42,35,172/- in the instant case and the purported finding on that behalf is absolutely arbitrary, unreasonable and perverse. ii. For that the ld. Commissioner of Income Tax (Appeals) - NFAC was absolutely in error in upholding the disallowance in the sum of Rs. 42,35,172/- made u/s 2(24)(x) read with s. 36(1)(va) of thes Income Tax Act, 1961 by the ld. Deput....

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....re the ld. CIT(A). The ld. CIT(A) elaborately noted the submission made by the assessee in respect of disallowance of Rs. 42,35,172/- and Rs. 9,933/- u/s 36(1)(va) of the Act on account of delayed deposit of employee's contribution to PF & ESI. However he was not convinced with the same and rejected the assessee's plea by observing in para 5 to 5.28 of his order as under: "5.29. Thus the aforesaid Explanations inserted by Finance Act, 2021 have clarified that definition of due date as per section 43B is deemed never to have been applied for the purpose of employee's contribution. As discussed above, the said amendments are clarificatory in nature and are retrospective in operation. Therefore, the payment of employee's contribution ....

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....ave heard both the parties on this issue and perused the material available on record. The ld. counsel for the assessee fairly submitted that the decision of Hon'ble Supreme Court in the case Checkmate Services Pvt. Ltd. (2022) 143 taxmann.com 178 wherein it has been held that employee contribution to PF & ESI paid beyond due date and specified under the relevant Act then the same has to be added back to the income of the assessee. On the other hand, ld. DR has not any objection to such prayer made by the ld. AR. We after careful consideration of the submission made by the parties and following the decision rendered by the Hon'ble Supreme Court (supra), the issue raised by the assessee are covered. Therefore, ground raised by the assessee i....