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2021 (4) TMI 707 - AT - Income TaxContribution to PF/ESI by employer - Disallowance u/s 36(1)(va) or 43B - HELD THAT - AR of the assessee fairly submits that issue of disallowance under section 36(1)(va) raised by the assessee is covered against him by the decision of Hon ble Gujarat High Court in case of CIT vs. Gujarat State Road Transport Corporation 2014 (1) TMI 502 - GUJARAT HIGH COURT - However instead of keeping the matter alive the case was restore to Ld. CIT(A) to give effect to the order of the Tribunal in accordance with the decision of Hon ble Supreme Court in SLP in Gujarat State Road Transport Corporation CORPORATION - Thus we restore the case to the file of the Ld. CIT(A) to follow the outcome of SLP in case of GSRTC (supra).
Issues:
1. Disallowance of PF/ESI contribution under section 36(1)(va) and applicability of section 43B. Analysis: The appeal was filed against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2013-14. The Assessing Officer disallowed the PF/ESI contribution made by the assessee under section 36(1)(va) as the payments were made after the prescribed period. The issue raised was whether the disallowance should be made according to section 43B instead. The assessee contended that the delay in filing the appeal before the Tribunal was due to the non-availability of their accountant and requested for condonation of the delay. The delay of 3 days was condoned considering the explanation provided by the assessee. On the merits of the case, the assessee argued that the issue of disallowance under section 36(1)(va) was covered against them by a decision of the Hon'ble Gujarat High Court in a specific case. The Special Leave Petition filed by the Gujarat State Road Transport Corporation against the High Court decision had been admitted by the Supreme Court. The assessee requested that the appeal be kept in abeyance or restored to the Commissioner of Income Tax (Appeals) with directions to allow relief if the matter was decided in favor of the GSRTC. The Revenue, however, argued that the issue was already decided against the assessee by the jurisdictional High Court. The Tribunal noted that a previous decision had held that the issue was covered against the assessee by the decision of the Gujarat High Court. Despite this, the Tribunal decided to restore the case to the file of the Commissioner of Income Tax (Appeals) to follow the outcome of the Supreme Court's decision in the GSRTC case. Consequently, the appeal of the assessee was allowed for statistical purposes.
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