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TMI Blog2023 (3) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 36(1)(va) of the Act vide intimation issued under section 143(1) Issue arose from the order passed u/s 154 and not from the intimation issued under section 143(1) of the Act. The view taken by the ADIT, CPC under section 154 is in consonance with the law laid down by the Hon ble Supreme Court in Checkmate Services (P.) Ltd. (supra), and therefore the claim of deduction towards employee s contribution to PF ESI made by the assessee becomes an incorrect claim under section 143(1) -Appeal by the assessee is dismissed. - ITA no.3139/Mum./2022 - - - Dated:- 21-3-2023 - Shri G.S. Pannu, President And Shri Sandeep Singh Karhail, Judicial Member For the Assessee : Shri Haridas Bhat For the Revenue : Smt. Mahita Nair ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be made without assessment. 3. The appellant, therefore, prays that the disallowance made u/s 154 r.w.s 143(1) of the Act is bad at law and shall be deleted. GROUND II 1. On the facts and circumstances of the case, and in Law, CITA erred in confirming the disallowance made by Asst. Director of Income Tax, CPC of Rs. 10,73,794 /- being Payment of PF dues u/s 36(1)(va) of the Act considering the same as not deposited on time. 2. On the facts and circumstances of the case and in law the CITA failed to appreciate that The payments were deposited in the relevant fund before the due date of filing the return. 3. The appellant, therefore, prays that the disallowance of Rs. 10,73,7947- is respect of Late payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only upon manual checking the appeal status. Further, the date of communication of the order mentioned in Form No.36 is the date that the assessee presumes to be the date on which the same would have been uploaded on the web portal. Further, the learned AR agreed with the submission of the learned DR that if the issue on merits is found to be covered in favour of the Revenue by the decision of the Hon ble Supreme Court in Checkmate Services (P.) Ltd. (supra) then prayer for condonation of delay would be rendered academic in the present case. Therefore, given the consensus amongst parties on prayer for condonation of delay, the issue raised in the present appeal is taken up first. 4. In this appeal, the only grievance of the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(1)(a) of the Act. 7. We have considered the rival submissions and perused the material available on record. We find that the Hon ble Supreme Court in Checkmate Services (P.) Ltd. (supra) held that payment towards employee s contribution to provident fund after the due date prescribed under the relevant statute is not allowable as deduction under section 36(1)(va) of the Act. The relevant findings of the Hon ble Supreme Court, in the aforesaid decision, are as under: 53. The distinction between an employer s contribution which is its primary liability under law in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees contributions- which are deducted from their income. They are not part of the assessee employer s income, nor are they heads of deduction per se in the form of statutory pay out. They are others income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law laid down by the Hon ble Supreme Court in Checkmate Services (P.) Ltd. (supra), and therefore the claim of deduction towards employee s contribution to PF ESI made by the assessee becomes an incorrect claim under section 143(1) of the Act. Accordingly, we find no infirmity in the impugned order passed by the learned CIT(A). As a result, the appeal filed by the assessee on the impugned issue is dismissed. 9. Since the issue on merits is found to be covered in favour of the Revenue by the decision of the Hon ble Supreme Court in Checkmate Services (P.) Ltd. (supra), in view of the consensus amongst parties, the application for condonation of delay needs no separate adjudication. 10. In the result, the appeal by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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