2022 (9) TMI 1688

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....nce on account of delayed payment of employees' contribution to Provident Fund and Employees State Insurance Corporation Fund of Rs. 1,73,046/- made by CPC Bangaluru while processing the return of income u/s 143(1) of the Act. 2. On the basis of the facts and in the circumstances of the case and as per law, the NFAC is not justified in confirming the disallowance of Rs. 1,73,046/- made by CPC, Bangaluru on account of delay in payment of employees' contribution to Provident Fund and Employees' State Insurance Corporation Fund by relying on the Explanation 5 to section 43B of the Act particularly when the said Explanation is effective from 01-04-2021. 3. The appellant craves for the addition to, deletion, alteration, modification of the above grounds of appeal." ITA No. 563/PUN/2021 for A.Y. 201819 - Kalokhe Stone Crusher 1. The ld. CIT(A)-12 Pune, erred in law and on facts in confirming the addition of Rs. 1,78,512/- on account of delay in depositing Employees' Contribution to PF/ESI Act made by the Asstt. Director of Income-tax, CPC Bangalore. 2. The IT authorities ought to have appreciated that amendment to section 43B r.w.s. 36(1)(va) r.w.s.....

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.... "1. On the facts and in the circumstances of the case and in law, the ld. CIT(a)-12 Pune has erred in confirming the addition made by the ld. A.O of Rs. 2,29,310/- under the head Profit and Gains from business and profession without appreciating the fact that though the payment of employees' provident fund and employees' State Insurance Contribution was made after the due date specified under relevant act but was made before the due date of filing of return of income u/s 139(1) of the Act and so no disallowance is warranted u/s 36(1)(va) r.w.s. 43B of the Act. The appellant hereby prays that the disallowance of Rs. 2,29,310/- may please be deleted. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A)-12, Pune has erred in confirming the addition made by the ld. A.O of Rs. 2,29,310/- under the head Profit and Gains from Business and profession without appreciating the fact the explanation 2 to the section 36(1)(va) oof the Act was inserted by Finance Act, 2021 w.e.f. 01-04-2021 and hence not applicable to the A.Y. 2018-19. The appellant hereby prays that the disallowance of Rs. 2,20,310/- may please be deleted. 3. The appellant he....

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.... to dispose of all the appeals on merits after hearing the ld. CIT-DR. 7. We heard the ld. CIT-DR and perused the material on record. The only issue raised through various grounds of appeal in this appeal is against the confirmation of disallowance of Rs.1,46,592/- made by the Assessing Officer u/s 36(1)(va) of the Act on account of late deposit of the Employees' share of EPF and ESI etc. 8. At the outset, ld. AR appearing on behalf of the appellant Tilokchand Bhabutmal Shah listed at Sl. No.1 of above cause title filed a copy of recent decision of Co-ordinate Bench of this Tribunal in the case of Prashant Arun Sangai vs. ADIT in ITA No.466/PUN/2021 for the assessment year 2019-20 order dated 22.06.2022 stating that the identical issue was decided by the Tribunal (supra) in favour of the assessee. Referring to this decision of the Tribunal (supra), he submitted that principle of consistency should be applied to the facts of the present case. The ld. CIT-DR has expressed no objection on this submission of the assessee. 9. Considering the submission of the ld. AR and perusing the recent decision of the Tribunal (supra), we find that the identical issue was ....

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....s anterior to the amendment carried out with effect from A.Y. 2021-22, we hold that the position of law as set out by various Hon'ble High Courts including the one in CIT vs. Nipso Polyfabriks Ltd. (supra) squarely applies to the facts and circumstances of the instant case, thereby not warranting any disallowance since the amount in question was admittedly deposited before due date u/s 139(1) of the Act. The addition is therefore, directed to be deleted." 10. Similarly, the Hon'ble Jurisdictional High Court in the case of CIT vs. Ghatge Patil Transports Ltd. 368 ITR 749 (Bom.) has taken identical view as taken by the Hon'ble Himachal Pradesh High Court in the case of Nipso Polyfabriks Ltd. (supra) and decided the issue in favour of the assessee. 11. Respectfully following the above judicial precedents, we hold that the ratio laid down by the Hon'ble High Courts cited above is squarely applicable to the facts of the present case. Therefore, following the principle of consistency, we direct the Assessing Officer to delete the addition of Rs.1,46,592/- made u/s 36(1)(va) of the Act. 12. In the result, the appeal filed by the assessee in ITA No.538/PUN/2021 f....