Adish Kumar Jain, New Delhi V. DCIT, Circle-28(1), Delhi

ITA 1631/DEL/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 9245 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-01-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 25-05-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS
• Section: 154; 43B; 143(1)

Judgement Text

1 ITA Nos. 1631, 1632 & 1633/Del/2023 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’, NEW DELHI BEFORE SHRI SAKTIJIT DEY, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA Nos.1631, 1632 & 1633/Del/2023 (Assessment Years : 2018-19, 2019-20 & 2020-21) Adish Kumar Jain M-8, Green Park Main, New Deli-110 016 PAN No. ADRPJ 4483 G Vs. DCIT Circle – 28(1) Delhi (APPELLANT) (RESPONDENT) Assessee by -None- Revenue by Shri Kanav Bali, Sr. D.R. Date of hearing: 02.01.2024 Date of Pronouncement: 08.01.2024 ORDER PER PRADIP KUMAR KEDIA, AM : The captioned appeals arises from the order of the Commissioner of Income Tax (Appeals), NFAC – Delhi in respective assessment orders passed by the Assessing Officer tabulated hereunder: Sr. Nos. ITA/CO Nos. CIT(A) Order dated Assessment Order dated Remarks 1. ITA No.1631/Del/2023 CIT(A)-NFAC, Delhi order dated 29.03.2023 Assessment order dated 16.11.2020 Assessment Order under section 154 of the Income Tax Act, 1961. 2 ITA No.1632/Del/2023 -do- Assessment order dated 13.11.2020 -do- 2 ITA Nos. 1631, 1632 & 1633/Del/2023 3. ITA No.1633/Del/2023 -do- Assessment order dated 17.03.2022 -do- 2. The respective appeals captioned above are dealt with hereunder: ITA No. 1631/Del/2023 for A.Y. 2018-19 : 3. As per the grounds of appeal, the assessee has challenged the disallowance of employees contribution to Provident Fund/ESIC u/s 36(i)(va) r.w.s. 43B of the Act. 4. When the matter was called for hearing, none appeared for the assessee. It was seen that opportunities have been given in the past for compliance. However, none appeared on behalf of the assessee. Under these circumstances, we are constraint to proceed ex-parte in the absence of the assessee. 5. The Ld. Sr. DR for the Revenue on its part, contended that Central Processing Centre (“CPC”) has made additions of Rs. 3,88,530/- to the returned income of the assessee on account of late deposit of employees contribution to Provident Fund/ESIC deferred while processing the return of income. In this regard, the action of the Revenue in making disallowance towards late deposit of employees contribution to Provident Fund/ESIC was supported by the judgement rendered in the case of Checkmate Services (P.) Ltd. vs CIT (2022) 143 taxmann.com 178 (SC). Ld. Sr. DR for the Revenue thus submitted that even for Assessment Years prior to Assessment Year 2021-22, belated deposit of employees contribution held in Trust by the employee Assessee are to be reckoned as taxable income of the assessee u/s. 2(24)(x) r.w. Section 43B of the Act and the deduction u/s 36(i)(va) of the Act would not be permissible thereon in case of belated payments. Ld. Sr.DR for the Revenue further contended that the delayed deposit of employees contribution indicated in the Audit Report is sufficient for adjustment under section 143(1) of the Act, as held by the 3 ITA Nos. 1631, 1632 & 1633/Del/2023 Pune Bench of the Tribunal in the case of Cemetile Industries vs ITO TS-933-ITAT- 2022 (Pune). 6. The issue towards taxability of belated employees contribution to Provident Fund/ESIC is no longer res integra in the light of the judgement of the Hon’ble Supreme Court in the case of Checkmate Services (P.) Ltd. vs CIT (supra). The co- ordinate Bench of the Tribunal in Cemetile Industries vs ITO (supra) had expressed a view that such adjustment/disallowance is also permissible in the proceedings carried out u/s 143(1) of the Act. Very recently, the Co-ordinate Bench of the Tribunal in Savleen Kaur & Others vs ITO in ITA No.2249/Del/2022 & Others for Assessment Year 2018-19 & Others vide order dated 09.01.2023 and in BT Data and Surveying Services India Pvt. Ltd. vs. ITO in ITA No.1658/Del/2021 for Asy 2018-19 vide order dated 07.02.2023 has also taken a similar view and upheld the action of the Revenue. 7. In parity with the view taken by Co-ordinate Benches, we do not see any merit in the appeal of the assessee. We thus, do not see any warrant to any reason to interfere with the order of Ld.CIT(A). 8. In the result, the appeal of the assessee is dismissed ex-parte. ITA No. 1632/Del/2023 for A.Y. 2019-20 : 9. As per grounds of appeal, two issues emerges namely; (i) disallowance of employees contribution to ESIC/PF amounting to Rs.4,09,947/- on account of belated deposits beyond the due date prescribed under the relevant act. (ii) TDS credit of Rs.14,35,585/- not granted in violation of section 199 read in Rule 37BA. 4 ITA Nos. 1631, 1632 & 1633/Del/2023 10. In consonance of the view taken in ITA No.1631/Del/2023 relevant to A.Y. 2018-19 (supra) there is no merit in the grievance raised by the assessee against the disallowance of belated deposits of employees contribution to ESIC/PF made under section 36(1)(va) r.w.s 43B of the Act. The issue is thus decided against the assessee. 11. The assessee appears to have claimed TDS credit of Rs.14,35,585/- which have not been given on the process of return of income. The CIT(A) has dealt with the issue as under: “8. Further, with reference to the appellant's claim of TDS credit and its related grounds, it is observed that appellant is claiming TDS credit for Rs. 14.35.585/- as deducted by Secretary. UP transport Corporation in the next FY 2019-20 as per the details mentioned in the statements of facts/ Grounds of appeal of appellant. From these facts, it is clear that appellant is eligible for TDS credit only in the year it is deducted and credited in Govt. account and accordingly the same is eligible for claim in the year in which deducted/paid by the deductor. Appellant's plea to allow such credit in earlier years neither has a basis nor has any relevance as the same is not even deducted and paid in the earlier years i.e. in this AY 2019-20 and accordingly an amount which is not credited to the Govt. account will not be allowable in the year in which it is not even existing as credit to appellant as per IT. Act. Accordingly appellant's plea to consider for TDS credit of subsequent year that is AY 2020-21 in AY 2019-20 is not justifiable as per IT Act. Thereby appellant's grounds of appeal on this issue is dismissed.” 12. The CIT(A) has not entertained the claim towards TDS credit on the ground that such claim is not in consonance in section 199 read in Rule 37BA. In the absence of relevant facts, it is difficult to decide the issue either way. We accordingly consider it expedient to restore the issue back to the file of Assessing Officer/CPC for fresh adjudication in accordance with law. The assessee shall be at liberty to demonstrate the justification for entertaining such claim towards TDS credit in tune with section 199 read with Rule 37BA of the Act. The AO shall pass a reasoned order on the issue. 5 ITA Nos. 1631, 1632 & 1633/Del/2023 13. The second issue thus allowed for statistical purposes. 14. In the result, appeal of the assessee is partly allowed. ITA No.1633/Del/2023 for A.Y. 2020-21 : 15. The solitary issue as per grounds of appeal relates to disallowance of Employees Contribution to Provident Fund/ESIC amounting to Rs.2,34,120/- under section 36(1)(va) read with section 43B of the Act. 16. In consonance with the view taken in other appeals (supra), the issue is decided against the assessee and in favour of the Revenue. 17. In the result, appeal of assessee is thus dismissed. 18. In the combined result, appeals in ITA No.1631/Del/2023 for A.Y. 2018-19 and in ITA No.1633/Del/2023 for A.Y. 2020-21 are dismissed and Appeal in ITA No.1632/Del/2023 for A.Y. 2019-20 is partly allowed. Order was pronounced in the open court on 08.01.2024 Sd/- Sd/- (SAKTIJIT DEY) (PRADIP KUMAR KEDIA) VICE PRESIDENT ACCOUNTANT MEMBER Date:- 08.01.2024 Priti Yadav, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI