2023 (12) TMI 56 - AT - Income Tax

Addition of employees contribution to PF / ESI - assessee argued disallowance ought to have been made considering the month during which the salaries were actually disbursed (and not the month to which the salaries relate) - HELD THAT - We find that the ld. AR before us placed a chart separately for PF and ESI stating that the addition to be made would be only Rs 3,33,937/- as against Rs 53,89,319/-, if the month in which salary was actually disbursed is taken into account by the ld. AO. We find that this aspect of the issue was not decided in the decision of CHECKMATE SERVICES P. LTD. VERSUS COMMISSIONER OF INCOME TAX-1 2022 (10) TMI 617 - SUPREME COURT - AR placed reliance on the decision of Calcutta Tribunal in the case of Kanoi Paper Industries Ltd vs ACIT 2001 (5) TMI 139 - ITAT CALCUTTA-E where this aspect of the issue was considered. The ld. DR vehemently relied on the orders of the lower authorities and argued that the issue of employees contribution to PF/ ESI had already been decided in favour of the revenue by the recent decision of Hon ble Supreme Court referred supra. Considering the tabulation submitted by the assessee for each of the month in which salary was actually disbursed, we deem it fit and appropriate to restore this issue to the file of ld. AO for verification of those figures. On verification, if it is found that the employees contribution to PF / ESI had been remitted within the due date from the end of the month in which salary was disbursed, then assessee would be entitled for relief and no addition could be made thereon. The ld. AO is also directed to examine the applicability of KANOI PAPER INDUSTRIES LTD. case while deciding the issue. Accordingly, the Additional Ground B is allowed for statistical purposes. Adjustment on a/c of variance based upon a statement made by the Tax Auditor in Tax Audit Report (without mentioning that the reported amount is to be disallowed) - As claim of deduction towards employee s contribution to PF ESI made by the assessee becomes an incorrect claim warranting primafacie adjustment u/s. 143(1) of the Act. Hence, the decision relied by the ld. AR would not advance the case of the assessee. Accordingly, Additional Ground A raised by the assessee is dismissed.

Summary

Issues:
The appeal involved a delay in filing, addition made on account of employees' contribution to PF/ESI, and the justification of the decisions by the lower authorities.

Delay in Filing:
The appellant filed an appeal 374 days late, but the delay was condoned by the tribunal considering the reasons provided in the condonation petition and the lack of serious objections from the respondent.

Employees' Contribution to PF/ESI:
The main issue was whether the addition made by the Commissioner of Income Tax (Appeals) on account of employees' contribution to PF/ESI was justified. The appellant raised additional grounds related to the adjustment made by the CPC and the timing of salary disbursement. The tribunal admitted the additional grounds for adjudication, particularly focusing on the month during which salaries were actually disbursed.

Decision and Rulings:
The tribunal decided against the appellant on the original grounds based on a Supreme Court decision. However, they admitted the legal issue raised in the additional grounds for further examination. The tribunal directed the Assessing Officer to verify the figures related to employees' contribution to PF/ESI and consider the applicability of a decision by the Calcutta Tribunal. The additional ground related to the timing of salary disbursement was allowed for statistical purposes.

Precedents and Arguments:
The appellant relied on a decision by the Mumbai Tribunal in a similar case, but the tribunal dismissed the claim based on a Supreme Court ruling. The tribunal emphasized that the claim for deduction towards employees' contribution to PF & ESI was incorrect, leading to adjustments under Section 143(1) of the Act.

Conclusion:
The appeal was partly allowed for statistical purposes, with the tribunal making specific directions for further verification by the Assessing Officer. The decision was pronounced in open court on 11th September 2023.