2022 (7) TMI 1007 - AT - Income Tax

Addition u/s 43B for service tax payable - Assessee submitted that mistake in the observations made in the audit report on Form No. 3CD attached with the audit report u/s. 44AB in Form 3CB at the time of filing return of income, wherein wrongly it was mentioned that service tax was routed through P L account - HELD THAT - Since in the instant case the processing u/s. 143(1) of the Act was completed on 15-03-2019, whereas the revised audit report is dt. 05-04-2019 in which claim of the assessee is that service tax of Rs.79,701/- was not routed through P L account, therefore, this fact needs examination at the end of the ld. AO before whom the assessee shall place the relevant documents including the revised audit report and the financial statement to prove that the alleged amount of service tax of Rs.79,701/- has not been claimed as an expenditure in the P L account. After affording reasonable opportunity of hearing to the assessee the ld. AO will decide this issue afresh in accordance with law. Thus, ground no.1 raised by the assessee is allowed for statistical purpose as per terms indicated above. Disallowances u/s. 43B and u/s. 36(1)(va) - delayed payment of PF/ESI of employees contribution and towards payment of PF/ESI of employer s contribution - HELD THAT - As the uncontroverted facts remains that alleged amount is claimed as an expenditure in Profit Loss account and the same stands duly deposited with the regulating authority of Provident Fund ESI before the due date of filing of return of income u/s. 139(1) of the Act. Though there is a delay in depositing the same within the time limit as prescribed under the PF/ESI Act, but since the alleged sum has been paid before the due date of filing of return u/s. 139(1) of the Act no disallowance u/s. 43B of the Act is called for. Therefore, we find no merit in the finding of the ld. CIT(A) confirming the disallowanc towards employer s contribution of PF/ESI and the same stands deleted. As regards employees contribution of PF/ESI we find that the case of the assessee is squarely covered by the decision of this Tribunal in the case of Deloitte Haskins Sells ( 2022 (3) TMI 1399 - ITAT KOLKATA wherein this Tribunal has considered the ratio laid down by case of Vijayshree Ltd. 2011 (9) TMI 30 - CALCUTTA HIGH COURT and also case of Lumino Industries Ltd 2021 (11) TMI 926 - ITAT KOLKATA - We, therefore held that since the details of payment of PF/ESI are duly captured in the audit report and the same was placed before the ld. CIT(A), it is an admitted fact that alleged sum of employees contribution stands duly deposited before the due date of filing of return of income provided u/s. 139(1) of the Act and also the amendments brought w.e.f 1-4-2021 in provisions of section 36(1)(va) as well as section 43B of the Act are held to be prospective in nature, the impugned disallowance of Rs. 5,26,357/- u/s. 36(1)(va) of the Act towards employees contribution to PF/ESI deserves to be deleted. Accordingly, we set aside the finding of the ld. CIT(A) and allow ground nos. 2,3 4 raised by the assessee.

Summary

Issues Involved:
1. Disallowance of service tax under section 43B of the Income Tax Act, 1961.
2. Disallowance of employer's and employees' contribution to PF/ESI under section 36(1)(va) of the Income Tax Act, 1961.

Analysis:

Issue 1: Disallowance of service tax under section 43B of the Income Tax Act, 1961:
The appellant, a private limited company, filed an e-return of income for the AY 2017-18, which was processed under section 143(1) of the Act by CPC, Bangalore. Disallowances were made under section 43B of the Act, including Rs. 79,701 for service tax. The appellant appealed to the CIT(A) but was unsuccessful. The Tribunal observed discrepancies in the audit report regarding the routing of service tax through the Profit & Loss account. The revised audit report clarified that service tax was not routed through the P & L account. The Tribunal directed the AO to examine the revised report and relevant documents to verify the claim that service tax was not claimed as an expenditure in the P & L account. The ground raised by the assessee was allowed for statistical purposes pending further examination.

Issue 2: Disallowance of employer's and employees' contribution to PF/ESI under section 36(1)(va) of the Income Tax Act, 1961:
The appellant contested the disallowance of Rs. 10,52,714, which included contributions to PF/ESI. Regarding the employer's contribution, it was noted that the amount was claimed as an expenditure in the Profit & Loss account and was deposited before the due date of filing the return of income. As there was no delay in payment before the due date, no disallowance under section 43B of the Act was warranted. The disallowance of the employer's contribution was deleted. Concerning the employees' contribution, the Tribunal relied on precedents and held that since the details were captured in the audit report and the sum was deposited before the due date of filing the return of income, the disallowance under section 36(1)(va) deserved to be deleted. The Tribunal set aside the CIT(A)'s finding and allowed the grounds raised by the assessee.

In conclusion, the appeal of the assessee was partly allowed for statistical purposes based on the specific findings for each issue discussed above.