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TMI Blog2023 (3) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal:- Grounds of Appeal Tax effect relating to each Ground of appeal (see note below) 1. On the facts and in the circumstances of the case, the Hon'ble Commissioner of Income Tax (Appeals) has erred in law and on facts by disallowing payment of Rs. 2,02,462/- of employees contribution to Provident Fund. The payment to PF is an expense and not income in the hands of the appellant and the same was paid well in time i.e. much before the due date of filing of return under section 139(1). Rs. 45,216/- 2. On the facts and in the circumstances of the case, the Hon'ble Commissioner of Income Tax (Appeals) has erred in law and on facts by disallowing payment of Rs. 24,605 /-of employees contribution to ESI. The payment to Empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the operation of the section. The Ld. CIT(Appeals) made the following observations while dismissing the assessee's appeal: "6.9 In view of the above discussions and also keeping in view of the clarificatory amendments brought in by the Finance Act, 2021 vide (a) Explanation 2 in section 36(1 )(va) (b) Explanation 5 in section 43B Keeping in view of the above clarificatory explanations and following the ratio of the above decisions, the order of the Assessing Officer is upheld and ground No.1 of appeal of appellant is dismissed." 5. The assessee is in appeal before us against the order passed by Ld. CIT(Appeals). Before us, the counsel for the assessee submitted that firstly, in the audit report, the auditor has not made any sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be computed after making the following adjustments, namely:- (i) any arithmetical error in the return; (ii) an incorrect claim, if such incorrect claim is apparent from any information in the return; (iii) disallowance of loss claimed, if return of the previous year for which set off of loss is claimed was furnished beyond the due date specified under sub-section (1) of section 139; (iv) disallowance of expenditure [or increase in income] indicated in the audit report but not taken into account in computing the total income in the return; (v) disallowance of deduction claimed under 69[section 10AA or under any of the provisions of Chapter VI-A under the heading "C.- Deductions in respect of certain incomes", if] the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee as an employer not allowable under section 40A(9), serial number 21(h) amount of deduction inadmissible in terms of section 14A etc, there is a specific requirement that the auditor has to mention whether the expenditure is admissible/allowable or not. However, so far as section 36(1)(va) of the Act, the audit report does not require the auditor to make a specific observation regarding "admissibility/inadmissibility" of the above expenditure. 6.2 Therefore, once the auditor has mentioned the "actual" dates of ESI/PF remittance and the "due" dates of ESI/PF remittance by the assessee u/s 36(1)(va) of the Act at serial number 20(b) of the audit report, then, in our considered view, the requirement of section 143(1) of the Act viz. "di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sseeemployer under section 43B of the Act. The Hon'ble Supreme held that the non obstante clause under section 43B could not apply in case of amounts which were held in trust as was case of employee's contribution which were deducted from their income and was not part of assessee-employer's income, thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction. Again the Supreme Court in the case of Harrisons Malayalam Ltd. [2022] 145 taxmann.com 608 (SC), dismissed the SLP of the Assessee against order of High Court that where assessee-company failed to pay employees' contribution towards EPF and ESI within due date prescribed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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