9911796707
TMI Blog2022 (5) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... the intimation u/s. 143(1) of the Act, the assessee filed an appeal before the CIT(A) which was migrated to the NFAC in terms of notification No. 76/2020 in S.O. No. 3296(E), dated 25/09/2020 from CBDT. Before the Ld. CIT(A), the assessee reiterated that disallowance of employees share of contribution of PF made on account of late payment, even though the same were paid before the end of the previous year in most of the instances and in any case all were paid before the due date of filing the return of income. The Ld. CIT(A) after considering the submissions of the assessee relied on the amendment made to section 43B as well as section 36(1)(va) by insertion of explanations to those sections by the Finance Act, 2021. Therefore, the Ld. CIT(A) dismissed the appeal filed by the assessee. 4. Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal and the Ld. AR relied on the following grounds of appeal:- 1. The Ld. Commissioner of Income Tax(A), NFAC has failed to appreciate the provisions of the Act, while upholding the order of the Assessing Officer, CPC, which is contrary to the facts of the case and bad in law. 2. The Ld. Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPC, Bangalore to the extent of Rs. 7,31,016/- u/sec. 143(1)(a) is an issue which required to be verified with the relevant documents. Therefore, the adjustments are not within the scope provided u/sec. 143(1) (a) of the Act. As per proviso to section 143(1)(a), the AO is required to give an intimation before making such adjustments, either in writing or in electronic mode and the department has not demonstrated that it has given an intimation to the assessee proposing to make such adjustments. Therefore, the adjustment made by the CPC u/sec. 143(1)(a) is beyond the scope of the said section, hence, not permissible and accordingly deleted." Even otherwise, the ld. CIT(A) has followed the decision of this Tribunal while allowing the set off of losses and the department did not place any other decision of the superior Court to controvert the decision relied upon by the ld. CIT(A) cited supra. Therefore, the issue is squarely covered by the decision of this Tribunal against the Revenue, hence, we find no reason to interfere with the order of ld. CIT(A) and dismiss the appeal of the Revenue." 7. Since, the facts are identical respectfully following the view taken by this Tribunal, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of return of income u/s. 139(1) of the Act. 6. The only issue to be resolved is whether the assessee would be entitled to claim deduction for the employees' contribution made to PF after the due date prescribed under the PF Act, but before the due date prescribed for filing of income tax return in the light of the provisions contained in section 36(1)(va) of the Act and section 43B(b) of the Act. It is the contention of the assessee that there is no distinction between employer and employee contribution after omission of second proviso of section 43B of the Act by Finance Act, 2003 w.e.f. 1.4.2004. We find force in the arguments of the assessee for the reason that there is no difference between employees and employer contribution under the PF Act. Section 6 of Provident Fund Act provides for contribution and the manner in which such contribution shall be made. Paragraph 30 of the PF Scheme provides for payment of contributions. As per the said scheme, the employer at the first instance shall make the total contribution including employees' share. Paragraph 32 provides for recovery of member share of contribution and as per the scheme, the employer can recover the emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Essae Teraoka (P) Ltd. Vs. DCIT 366 ITR 408 took the view that the word contribution occurring in section 43B of the Act would include employees' contribution to PF in the light of the definition of the word contribution as per the provisions of section 2(c) of the PF Act. As per the said section, contribution would mean both employer's contribution and employees' contribution. Accordingly, it was held that the provisions of section 43B of the Act allowing deduction for payment made before the due date of filing of Income Tax return cannot be ignored. Similarly, the ITAT, Hyderabad Tribunal in the case of Tetra Soft (India) Pvt. Ltd. Vs. ACIT (2015) 40 ITR (Trib) 470 held that when assessee remitted employees' contribution to PF within due date of filing return of income u/s. 139(1) of the Act, amount of employees' contribution to PF cannot be disallowed. Similar view was upheld by the Chennai bench of the ITAT, in the case of ACIT Vs. Farida Shoes Pvt. Ltd. (2016) 46 CCH 29. The coordinate bench held that if assessee had not deposited employees' contribution towards provident fund up to the due date as prescribed under relevant statute, but before due ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
