2023 (10) TMI 1425

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....rned CIT(A)"], for the assessment year 2018-19. 2. The present appeal has been listed for hearing before us pursuant to the order dated 24/08/2023, passed by the Co-ordinate Bench of the Tribunal in ACIT v/s M/s. Graviss Hospitality Ltd., M.A. no.199/Mum./2023 (in ITA no.2075/Mum./2021, for the assessment year 2018-19), whereby, the earlier order dated 28/07/2022, passed under section 254(1) of the Act was recalled and the appeal was directed to be re-fixed for hearing. 3. When this appeal was called for hearing neither anyone appeared on behalf of the assessee nor was any application seeking adjournment filed despite service of notice. Therefore, in view of the above, we proceed to dispose off the present appeal ex-parte, qua the ass....

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....d as deduction u/s 43B r.w.s. 36(1)(va) of the Act. (c) The CIT(A) erred in not following the binding decision of Hon'ble Jurisdictional Bombay High Court in the case of CIT Vs. M/s Hindustan Organics Chemicals Ltd [366 ITR 1] and CIT Vs. Ghatge Patil Transports Ltd [368 ITR 749] while deciding the issue in appeal." 5. The only grievance of the assessee is against the disallowance on account of delayed payment of employees' contribution to Provident Fund (P.F) and Employees State Insurance Corporation (E.S.I.C) under section 36(1)(va) of the Act. 6. The brief facts of the case pertaining to this issue, as emanating from the record, are: The assessee filed its return of income on 31/10/2018, declaring a total loss of Rs .7....

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....oyers' income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts - the employer's liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees' income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under Section 43B. 54. In the opinion of this Court....