TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 27
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....es of Rs 4,85,833/- without granting further opportunity of being heard to appellant representative before passing final order as the appellant could not respond to the notices due to circumstances beyond the control. Without Prejudice to above, the appellant further submits that. 1) On facts and in the circumstances of the case, the Learned Commissioner of Income Tax (Appeals)-NFAC, Delhi erred in facts and in law in confirming disallowance of Employee's contribution to PF Act of Rs 1,90,12,166/- paid on or before due date & confirming double disallowance of PF damages of Rs 4,85,833/- even though the same was already disallowed in the computation. The appellant prays that disallowance/addition made should be deleted and relief to be granted to the appellant based on various judgements and pronouncements by various courts. 2) Order of Ld. CIT(A), NFAC, New Delhi being contrary to law, evidence and facts of the case deserves to be set aside, amended or modified. 3) The appellant humbly prays that the order of honorable CIT(A) NFAC, New Delhi should be set aside & the appellant be given a fresh opportunity of being heard by Honorable CIT(A) NF....
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....ntimation u/s 143(1). The appellant again filed the rectification application u/s 154 to which another order u/s 154 was passed on 03.04.2021 determining the assessed income of Rs. 2,28,38,892/-, again. 5. Being aggrieved assessee preferred and appeal before the first appellate authority wherein the assessee remain non compliant towards the notice issued u/s 250 of the Act, dated 22.11.2022, 15.12.2022, 29.12.2022 and 02.03.2023. Accordingly, Ld. CIT(A) dismissed the appeal of the assessee on ex-parte basis after considering the matter on merits by following the decision of Hon'ble Apex Court in the case of M/s. Checkmate Service Pvt Limited vs CIT dated 12.10.2022 in civil appeal No. 2833/2016. 6. Being dissatisfied with the impugned order, the assessee preferred an appeal before the ITAT, which is under consideration before us in the present matter. 7. At the outset Ld.AR on behalf of the assessee submitted that the order passed by the Ld. CIT(A) was not passed with correct appreciation of the facts, as the assessee was unbale to furnish necessary information before him. Ld.AR further submitted that the disallowances vide intimation u/s 143(1) consist of delayed payment ....
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....urt was pending for disposal before the Hon'ble Supreme Court, it would lead to an anarchy situation within this state. Ld.AR further referred to instruction of CBDT No.1814 dated 04.04.1989 and stated that there was categorical instruction by the CBDT that three types of adjustment are permitted under clause (i) to (iii) of proviso to the substituted section 143(1)(a) of the Act, the adjustment relating any rectification to arithmetical error in return, accounts or documents accompanying the return is self-evident and does not require any elaboration. He further referred to para 9 of the instruction that in the context of legal possession as outlined above it follows that it would not be permissible to assessing officer to disallowed a claim under deduction, allowance or relief in case where claim is made on the basis of decision of any High Court, Appellate Tribunal or other Appellate authority even though contrary view in the matter may have been expressed by another High Court or another bench of Tribunal for any other Appellate authority. The fact that claimed based on decision which has not been accepted by the board will also not make any difference to the position. Ld.AR fu....
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.... Stainless Steel (P.) Ltd. stating that a pending decision before Hon'ble Apex Court cannot lead the revenue authorities to not follow the decision of Hon'ble Jurisdictional High Court. Such contention of the Ld. AR cannot be accepted in present case, as the issue remains no more res-integra, after it is categorically analyzed and laid down by Hon'ble Apex Court in the case of M/s Checkmate Services Pvt. Ltd. Vs. CIT-1 (supra), and categorically held as under: "52. When Parliament introduced section 43B, what was on the statute book, was only employer's contribution (Section 34(1)(iv)). At that point in time, there was no question of employee's contribution being considered as part of the employer's earning. On the application of the original principles of law it could have been treated only as receipts not amounting to income. When Parliament introduced the amendments in 1988-89, inserting section 36(1)(va) and simultaneously inserting the second proviso of section 43B, its intention was not to treat the disparate nature of the amounts, similarly. As discussed previously, the memorandum introducing the Finance Bill clearly stated that the provisions - especially second....
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....t 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, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the employer's obligation to deposit the amounts retained by it or deducted by it from the employee's income, unless the condition that it is deposited on or before the due date, is correct and justified. The non-obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne....