2023 (9) TMI 1650

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....s. 1,77,54,030/- representing both employee and employers contribution towards PF & ESI based on the tax audit report. The Ld. Counsel for the assessee submits that there is a mistake in tax audit report in mentioning the PF & ESI contributions in respect of employee and also the employer which was corrected by filing revised tax audit report which was not considered by the authorities below. The Ld. Counsel for the assessee submits that the actual position in respect of the contributions towards PF & ESI is as under: - S. No. Particulars Employee Share Employer Share Total 1. ESIC Contribution deposited before Due Date under ESIC Act. 2,06,175 5,58,104 7,64,279 2. ESIC Contribution deposited after Due Date under ESIC Act b....

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....Mumbai Bench of the Tribunal in the case of Fluid Air (India) Ltd. Vs. DCIT (63 ITD 182). 5. Heard rival submissions, perused the orders of the authorities below. In so far as the PF & ESI contributions in respect of employer are concerned the same are allowable as deduction if they are remitted before due date for filing of return of income. The assessee contends that these contributions were remitted before due date of filing of return of income which fact needs to be verified by the Assessing Officer. Therefore, we direct the AO to verify the contentions of the assessee and if these contributions are remitted before due date for filing of return of income the same be allowed as deduction. 6. Coming to employees contributions towards PF....

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....(1) is covered against the assessee the decision of the co-ordinate bench in the case of Weather Comfort Engineers Private Limited vs. ACIT-CPC ITA No. 959/Del/2021 order dated 15/02/2023. The action of CPC and CIT (A) thus cannot be faulted where some opportunity was admittedly given for e- response. 9.2 We now turn to alternate plea on behalf of the assessee for grant of deduction under general provisions for deduction of expenditure under S. 37 of the Act. We do not see any merit in such plea that the belated deposit of employees contributions to PF/ESIC governed under Section 36(1)(va) is also simultaneously amenable to deduction under Section 37(1) of the Act. In terms of the provision, Section 37(1) permits deduction of expenditure....

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....nion on merits on this aspect, we deem it expedient to restore the matter to the file of designated AO. It shall be open to the assessee to place factual matrix before the AO and take such plea for evaluation of the AO. The AO shall examine this aspect and fresh order in accordance with law after giving proper opportunity." 5. Following the decision of the coordinate bench, we restore this issue to the file of the AO to decide the issue in the light of the observations made by the coordinate bench in the case of Sentinel Consultants Pvt. Ltd. and also the decision of the Kolkata Bench in the case of Kanoi Paper & Industries Ltd. Vs. ACIT (supra). Needless to say that the Assessing Officer shall provide adequate opportunity of being heard....