BALAJI EDUCATIONAL SOCIETY, VISAKHAPATNAM V. ASSICIANT COMMISSIONER OF INCOME TAX, CIRCLE-3(1), VISAKHAPATNAM

ITA 37/VIZ/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3390 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 07-02-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APARNA VILLURI
• Section: 43B; 143(1); 139(1)

Judgement Text

आयकरअपीलीयअधिकरण, धिशाखापटणम “SMC” पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM “SMC” BENCH, VISAKHAPATNAM श्री द ु व्वूरु आर एल रेड्डी, न्याधयक सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER आयकर अपील सं./I.T.A.No.37/Viz/2024 (ननधधारण वर्ा / Assessment Year : 2018-19) Balaji Educational Society D.No.14-8, Simhachalam Road Vepagunta Visakhapatnam [PAN : AAAAB1795J] Vs. Asst.Commissioner of Income Tax Circle-3(1) Visakhapatnam (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent) अपीलधथी की ओर से/ Appellant by : Shri G.V.N.Hari, AR प्रत्यधथी की ओर से / Respondent by : Dr.Aparna Villuri, DR सुनवधई की तधरीख / Date of Hearing : 11.03.2024 घोर्णध की तधरीख/Date of Pronouncement : 14.03.2024 आदेश /O R D E R Per Shri Duvvuru RL Reddy, Judicial Member : This appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals) [CIT(A)], Delhi in DIN & Order No.ITBA/APL/S/250/2023-24/1058682530(1) dated 12.12.2023 for the Assessment Year (A.Y.) 2018-19. 2. Brief facts of the case are that the assessee filed it’s return of income on 18.02.2019, declaring an income of Rs.20,09,410/-. The return was processed u/s 143(1) of the Act by the Centralized Processing Center (CPC)/Assessing Office(AO), computing the total income at Rs.29,34,790/-, 2 I.T.A. No.37/Viz/2024, A.Y.2018-19 Balaji Educational Society.,Visakhapatnam thereby making addition of Rs.9,25,386/- towards disallowance of expenditure u/s 43B of the Act in respect of employees contribution. 3. Aggrieved by the intimation passed u/s 143(1) of the Act by the CPC/AO, the assessee preferred an appeal before the CIT(A) and the Ld.CIT(A) upheld the order of the AO and dismissed the appeal of the assessee on this ground. 4. Aggrieved by the order of the Ld.CIT(A), the assessee preferred an appeal before the Tribunal by raising the following grounds of appeal : 1. The order of the learned ADDL./JCIT(Appeals)-7, Mumbai is contrary to the facts and also the law applicable to the facts of the case. 2. The learned ADDL./JCIT(Appeals) ought to have held that the adjustment of Rs.9,25,386/- made towards disallowance of delayed remittance of Employees’ contribution to PF and ESI is outside the scope of intimation u/s 143(1) of the Act. 3. Any other ground may be urged at the time of hearing. 5. The only contention of the Ld.AR is that the CPC/AO erred in disallowing the sum received from employees towards PF and ESI of Rs.9,25,386/- for the reason that the same was remitted belatedly beyond the due date prescribed by the PF Act and ESI Act. The Ld.AR contended that though the same could not be paid within the due dates specified under relevant Acts, the same were remitted before the due date of filing the return of income u/s 139(1) of the Act. The Ld.AR further contended 3 I.T.A. No.37/Viz/2024, A.Y.2018-19 Balaji Educational Society.,Visakhapatnam that the amendments made by Finance Act, 2021 to S.36(1)(va) and S.43B are applicable w.e.f. 01.04.2021 and do not apply for the year under consideration. He, therefore, pleaded to set aside the order passed by the Ld.CIT(A) and allow the appeal of the assessee. 6. Per contra, the Ld.DR relied on the order of the Ld.CIT(A) and pleaded to uphold the order passed by the Ld.CIT(A) and dismiss the appeal of the assessee. 7. I have heard both the parties and perused the material available on record. Now the law is settled on this issue after a view had been taken by Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd., in Civil Appeal No.2833 of 2016, order dated 12.10.2022. In the case on hand also, the assessee made remittances before filing the return of income u/s 139(1) of the Act, but not within the due date specified by the respective PF / ESI Acts. For the sake of clarity and convenience, relevant part of the order of the Checkmate Services Pvt. Ltd.(supra) is extracted as under : “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 deduction that such amounts are deposited on or before the due date.” Since the decision of the Hon’ble Supreme Court pronounced the correct legal position of the allowability of belated payment of PF and ESI 4 I.T.A. No.37/Viz/2024, A.Y.2018-19 Balaji Educational Society.,Visakhapatnam under the provisions of the Act, I have no hesitation to come to a conclusion that the disallowance made by the AO as well as the Ld.CIT(A) needs no interference, in view of the decision of the Hon’ble Supreme Court mentioned supra. 8. In the result, appeal of the assessee is dismissed. Order pronounced in the open court on 14 th March,2024. Sd/- (द ु व्वूरु आर.एल रेड्डी) (DUVVURU RL REDDY) न्याधयक सदस्य/JUDICIAL MEMBER Dated : 14.03.2024 L.Rama, SPS आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee– Balaji Educational Society, D.No.14-8, Simhachalam Road, Vepagunta, Visakhapatnam 2. रधजस्व/The Revenue – The Asst.Commissioner of Income Tax, Circle-3(1) Income Tax Office, Infinity Towers, Sankaramatam Road, Visakhapatnam 3. The Principal Commissioner of Income Tax, Visakhapatnam 4. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम / DR,ITAT, Visakhapatnam 5..गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam