VIKAS JOSHI, DELHI V. ITO Ward 5(2)(5) , NOIDA

ITA 2241/DEL/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4916 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2021-2022
• Appeal Filed On: 06-08-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(1); 43

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘H’, NEW DELHI Before Sh. Shamim Yahya, Accountant Member Sh. C. N. Prasad, Judicial Member ITA No. 2241/Del/2023 : Asstt. Year : 2021-22 Vikas Joshi, B-156, New Ashok Nagar, Delhi- 110096 Vs Income Tax Officer, Ward-5(2)(5), Noida-201301 (APPELLANT) (RESPONDENT) PAN No. ACPPJ6246C Assessee by : None Revenue by : Sh. Amit Katoch, Sr. DR Date of Hearing: 28.11.2023 Date of Pronouncement: 30.11.2023 ORDER Per Sh. Shamim Yahya, Accountant Member: This appeal by the assessee is directed against the order of National Faceless Appeal Centre (NFAC), Delhi dated 19.06.2023 and pertaining to Assessment Year 2021-22. 2. The grounds of appeal is as under: “The order of learned Commissioner of Income Tax (Appeal), National Faceless Appeal Centre [hereinafter referred as ld. CIT(A)] confirming disallowance u/s 36(1)(va) to the extent of Rs.67,93,047/- on account of alleged late deposit of employee contribution of PF for Rs.63,24,102/- and ESI for Rs.4,68,945/- made by the Assistant Director of Income Tax CPC, Bengaluru (hereinafter referees as AO) in 143(1) intimation order and dismissing the appeal is bad in law and facts. The appellant assessee seek relief by way of deleting the disallowances and consequential relief of deletion of demand of tax and interest Rs.23,54,080/-.” ITA No. 2241/Del/2023 Vikas Joshi 2 3. Brief facts of the case are that the return of income filed by the assessee for the Assessment Year 2021-22 was processed u/s 143(1) on 21.11.2022 by making disallowance of Rs.67,93,047/- u/s 36(1)(va) of the I.T. Act, 1961 for belated payment of PF/ESI expenses beyond the due date as detailed below: Amount in Rs. Disallowance of PF 63,24,102/- Disallowance of ESI 4,68,945/- Total disallowed 67,93,047/- 4. Against the above order, assessee filed appeal before the ld. CIT(A). The ld. CIT(A) found that the issue is squarely covered by the judgment of Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. vs. Commissioner Of Income Tax- I in CA No. 2833/2016 vide order dated 12.10.2022. 5. Against the above order, assessee has filed appeal before us. 6. We have heard the ld. DR and perused the material on record. We find Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. vs. Commissioner of Income Tax-I (supra) has concluded as under: "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 43 B which ITA No. 2241/Del/2023 Vikas Joshi 3 is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees' contributions- which are deducted from their income. They are not part of the assessee employer's income, nor are they heads of deduction per se in the form of statutory pay out. They are others' income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, and deemed an income, is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date. If such interpretation were to be adopted, the non-obstante clause under Section 43 B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee's contribution on or before the due date as a condition for deduction." 7. We agree with the findings of ld. CIT(A) that the issue is squarely covered by the decision of Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. vs. Commissioner Of Income Tax-I (supra). Accordingly, we uphold the order of the ld. CIT(A). ITA No. 2241/Del/2023 Vikas Joshi 4 8. In the result, the appeal of the assessee stands dismissed. Order Pronounced in the Open Court on 30/11/2023. Sd/- Sd/- (C. N. Prasad) (Shamim Yahya) Judicial Member Accountant Member Dated: 30/11/2023 *Subodh Kumar, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR