ASHIRBAD INFRASTRUCTURE SER & FACI MANAGEMENT PRIVATE LIMITED, DELHI V. ACIT, Circle-3(2), Delhi

ITA 115/DEL/2023

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The case involves Ashirbad Infrastructure Ser & Fact Management Pvt. Ltd., the appellant, contesting an order by the National Faceless Appeal Centre (NFAC), which disallowed a deduction for delayed payments of employees' contributions to PF and ESI for the assessment year 2018-19. The Centralized Processing Centre (CPC) initially disallowed the deduction, which was upheld by the Commissioner (Appeals). The tribunal dismissed the appeal due to the absence of the appellant's representative and the clear statutory provisions supporting the disallowance.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300782 (ITAT-DELHI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 10-04-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 17-01-2023
• Other Referred Cases: Checkmate Services Pvt. Ltd. vs. PCIT \\u2013 143 Taxmann.com 178, Suvleen Kaur Vs. ITO & Ors. \\u2013 ITA No. 2249/Del/2022 & Ors. Dated 09.01.2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(1); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No.115/Del/2023 Assessment Year: 2018-19 Ashirbad Infrastructure Ser & Fact Management Pvt. Ltd., 1121-A-6- Devika Tower, Nehru Place, New Delhi-110019 Vs. ACIT, Circle-3 (2) Delhi. PAN :AAGCA2338A (Appellant) (Respondent) ORDER This is an appeal by the assessee against the order dated 30.11.2022 by the National Faceless Appeal Centre (NFAC), Delhi pertaining to assessment year 2018-19. 2. When the appeal was called for hearing, none appeared on behalf of the assessee to represent the case. However, a letter dated Appellant by N o n e Respondent by Shri Om Parkash, Sr. DR Date of hearing 11.04.2023 Date of pronouncement 19.04.2023 2 ITA No.115/Del./2023 10.04.2023 on behalf of the assessee has been filed in the Registry seeking adjournment on the ground that concerned person who looks after Income-tax matters has gone out of station for bank audit. 3. I find the aforesaid ground seeking adjournment unsatisfactory. 4. On perusal of record, it is observed that on Ist March 2023 when the appeal came up for hearing, the assessee sought adjournment more or less on identical grounds that the very same person is not in a position to attend the case due to his illness. On the second date of hearing, surprisingly, no one appeared on behalf of the assessee. Today also, no one appeared, instead, an application seeking adjournment has been filed in the Registry. 5. On perusal of record, it is observed that the issue in dispute is squarely covered against the assessee by a decision of the Hon'ble Supreme Court. In fact, learned Departmental Representative has filed a written submission on the first day of hearing itself stating the aforesaid facts. Thus, it is apparent, being conscious to the fact that the issue stands covered against it, the assessee is adopting dilatory tactics. 3 ITA No.115/Del./2023 6. In view of the aforesaid, I decline assessee’s request for adjournment and proceed to dispose of the appeal ex parte qua the assessee after hearing learned Departmental Representative and based on material available on record. 7. As could be seen from the grounds raised, the only dispute arising in the appeal is on account of disallowance of Rs.25,27,369, being delayed payment of employees contribution to Provident Fund (PF) and Employees State Insurance (ESI). 8. Briefly, the facts are, while processing the return of income filed by the assessee for the impugned assessment year, the Centralized Processing Centre (CPC) noticed that, though, employees contribution to PF and ESI were paid beyond the date prescribed under the relevant statutes governing such payment, however, the assessee had claimed deduction of such payment while computing its income. 9. Being of the view that the deduction claimed, being in violation of section 36(1)(va) of the Act, the CPC disallowed the deduction claimed in the intimation issued under Section 143(1) of the Act. Against the intimation issued under Section 143(1) of the Act, the assessee preferred an appeal before learned Commissioner (Appeals) 4 ITA No.115/Del./2023 contesting the disallowance. However, learned Commissioner (Appeals) upheld the disallowance. 10. I have heard learned Departmental Representative and perused the material on record. 11. Undisputedly, employees contribution to PF and ESI were not remitted to the government account within the period prescribed under the relevant statutes governing such payment. Section 36(1)(va) of the Act makes it clear that in case employees contribution to PF and ESI are not paid within the due date prescribed under the relevant statutes, they will be treated as income of the concerned assessee in terms of section 2(24)(x) of the Act. Whereas, the assessee has claimed deduction of the amount on the ground that they were paid before the due date of filing of return of income under Section 139(1) of the Act. 12. I am of the view, the aforesaid claim of the assessee is not acceptable because of the clear statutory provisions contained under Section 36(1)(vi) read with secton2(24)(x) of the Act. In any case of the matter, the issue is no more res integra in view of the ratio laid down by the Hon'ble Supreme Court in case of Checkmate Services Pvt. Ltd. vs. PCIT – 143 Taxmann.com 178. 5 ITA No.115/Del./2023 13. Further, assessee’s claim that no such disallowance can be made by way of adjustment under Section 143(1)(a) of the Act would be of no relevance in view of the decision of the co-ordinate bench in case of Suvleen Kaur Vs. ITO & Ors. - ITA No. 2249/Del/2022 & Ors. Dated 09.01.2023. 14. In view of the aforesaid I do not find merits in the grounds raised and accordingly uphold the disallowance/addition made. 15. In the result, the appeal is dismissed. Order pronounced in the open court on 19 th April, 2023. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 19 th April, 2023. Mohan Lal Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi