TaxTMI 
TaxTMI 
2025 (12) TMI 596
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....isallowance of Rs. 99,07,089/- in respect of the employee's contribution to PF/ESI. This intimation was passed on 09.01.2020. The learned CIT(A) however, sustained the disallowance vide order dated 12.11.2021. Before us the learned Counsel for the assessee placing reliance on the decision of the coordinate Bench of Delhi in the case of A2Z Infra Services Pvt. Ltd. Vs. DCIT reported in 176 taxmann.com 639, stated that the Tribunal had considered as to whether an adjournment under Section 143(1) can be made in respect of employee's contribution to PF /ESI prior to the decision of the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT and the Hon'ble Bench held that when the intimation u/s. 143(1) was passed there were binding decisions of jurisdictional High Court in favour of the assessee and by virtue of this binding decision the AO/CPC could not have made disallowance of employee's contribution to PF/ ESI though paid beyond the due date specified in respective Acts but before the due date for filing the return of income while by processing return under Section 143(1). 5. On the other hand the learned DR placed reliance on the decision of the Hon'ble Supre....
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....e assessee preferred an appeal before the Income Tax Appellate Tribunal (ITAT), which was dismissed by the impugned order dated 26.09.2024 leading to filing of the present appeal, in which, the above-stated substantial question of law has been formulated for consideration. 4. Mr. Nikhilesh Begani, learned counsel appearing for the appellant/assessee submits that though the Assessing Officer has processed the return of the income of assessee, however, on 1 (2023) 6 SCC 451 4 the date when the intimation order was issued exercising powers under Section 143(1)(a) of the Act 1961, the issue with regard to claim of deduction under Section 36(1)(va) of the Act of 1961 i.e. as to whether the employees' contribution should be deposited on or before the due dates in terms of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for short "EPF Act 1952") and Employees' State Insurance Act, 1948 (for short "ESI Act 1948"), was pending consideration before the Supreme Court in Checkmate Services Pvt Ltd (supra) and only on 12.10.2022, the issue with regard to claim of deduction under Section 36(1)(va) of the Act of 1961 was settled holding that employees' c....
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....ourt in Checkmate Services Pvt. Ltd. (supra) was not available at the time when the intimation under Section 143(1)(a) of the Act of 1961 was issued in this case on 16.12.2021 and against the aforesaid orders of the ITAT, tax appeals vide TAXC No.149/2024 (The Deputy Commissioner of Income Tax Vs. Parv Builcon) and TAXC No.158/2024 (The Deputy Commissioner of Income Tax Vs. Satpal Singh Sandhu) respectively were preferred before this Court by the Revenue, however, both the appeals were withdrawn by the Revenue and as such, the Revenue cannot be allowed to take a different stand in different forums. Learned counsel for the appellant/assessee finally submits that the intimation order under Section 143(1)(a) of the Act of 1961, the order passed by CIT(Appeals) and the order passed by the 5 ITA No.04/RPR/2023 delivered on 11.05.2023 (ITAT Raipur Bench 'SMC') 6 [2024] 159 taxmann.com 1574 (Raipur-Trib.) 7 ITAT, affirming the order of CIT (Appeals), deserve to be set aside by granting this appeal. 5. Mr. Ajay Kumrani, learned counsel for the respondent would support the impugned order and submit that the contention of the appellant that the subject adjustment/disallowance is bey....
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....ices Pvt. Ltd. (supra). In the said judgment, their Lordships of the Supreme Court noticed a division of opinion on the issue of interpretation under Section 36(1)(va) of the Act of 1961, with the High Courts of Bombay, Himachal Pradesh, Calcutta, Guwahati and Delhi favouring the interpretation beneficial to the assessees on the one hand, and the High Courts of Kerala and Gujarat preferring the interpretation in favour of the Revenue on the other hand. Ultimately, their Lordships resolved the issue authoritatively by holding that to claim deduction under Section 36(1)(va) of the Act of 1961, the employees' contribution should be deposited on or before the due dates specified under the respective Employee Welfare Act. Their Lordships of the Supreme Court settled the issue by making the following observation :- "62. The distinction between an employer's contribution which is its primary liability under law - in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers' income, and the later retains its character as an income (albeit deemed), by virtue of Secti....