9911796707
TMI Blog2024 (4) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... urn arises from the intimation issued by the Centralized Processing Center (CPC)/A.O under Sec. 143(1) of the Income-tax Act,1961 dated 06.03.2020 for the assessment year 2019-20. 3. The facts, in brief, are that the appellant filed its return for the AY 2019- 2020 on 31.10.2019 declaring his total income at Rs. 14,66,150/-. The return was processed by the Assessing Officer (for short, the AO) under clause (a) sub-section (1) of Section 143 and a total income was computed at Rs. 34,50,570/- after disallowing Rs. 19,84,415/- relating to employees contribution to provident fund and ESIC to the extent not credited to the employees account on or before the due date under Section 36(1)(va) of the Act. The said order of the AO was challenged before the Commissioner of Income Tax (Appeals) under Section 246A of the Act which stood dismissed on 29.09.2021. The said order passed by the CIT(A) was further challenged before the learned ITAT which also stood dismissed on the ground of delay. 4. Mr. Manoj Kumar Sinha, learned counsel for the appellant submits that the appellant filed return of Income on 31.10.2019 declaring total income at Rs.14,66,150/- after claiming PF and ESIC deduction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order on e-filing portal, the date of receipt is deemed to be the date when the addressee has downloaded the communication. Accordingly, the delay in this case is neither deliberate nor attributable to lackadaisical attitude of the appellant as presumed by learned ITAT. 7. In support of his contentions, he relies on a decision of the Punjab & Haryana High Court in in Munjal BCU Centre of Innovation and Entrepreneurship vs. CIT(E)- 2024(3)TMI 479 (P&H HC), wherein it has been held that it is essential that before any action is taken, a communication of the notice must be in terms of the provisions and a pragmatic view has to be adopted always in these circumstances. An individual or company is not expected keep the e-portal open all the time so as to have knowledge of departments actions. Further, in Shakti Steel Trading vs. The Asstt. Commissioner (ST) WP No. 4122 & 4255 & 4256 in GST matters, which are analogous to IT matters, the Hon'ble Madras High Court has held that it is advisable for the Department to serve notice on such assessee through other mode of communications prescribed when they failed to respond to the summons, orders, notices and other communications through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld of hearing of the appeal submitted that a delay of 690 days was involved in filing of the present appeal. Elaborating on the reasons leading to the aforesaid delay, It was submitted by the Ld. AR that the same had occasioned for the reason that the accountant of the assessee firm. viz. Shri Amitabh Paul had failed to bring to the notice of the partners of the assessee firm the order of the CIT (Appeals), dated 20.09.2021. The Ld. AR submitted that Shri Bhuvneshwar Prasad Sahu, partner of the assessee firm received the aforesaid order from his accountant only as on 08.10.2023. The Ld. AR submitted that Shri Amitabh Paul, accountant had admitted that though the order of the CIT(Appeals) was received by him way back but it had skipped from his mind to bring the same to the notice of the partners of the assessee firm. Carrying this contention further, the Ld. AR submitted that it was only when Shri Bhuwaneshwar Prasad Sahu (supra) had further brought the aforesaid order of the CIT (Appeals) on 29.09.2021, to the notice of his chartered account, viz. Shri Ajay Agrawal that he was informed that the appeal of the assessee firm had been dismissed by the CIT(Appeals) Raipur. The Ld. AR f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lined to condone the delay of 690 days, without adverting to the merits of the case and hence dismissed the captioned appeal of the assessee as barred by limitation. 13. As far as the issue involved pertaining to claiming of deduction under section 36 (1) (va) of the IT Act 1961 on delayed payment of employees share of contribution towards ESI/PF of Rs. 19,84,415, in the instant case is concerned is no more res integra. The Hon'ble Supreme Court has decided the legal issue on merits in the matter of Checkmate Services P. Ltd. v. Commissioner of Income Tax-1, {Civil Appeal No. 2833 of 2016, decided on 12.10.2022}, wherein at paragraphs 51 to 54, it was observed as under:- "51. The analysis of the various judgments cited on behalf of the assessee i.e., Commissioner of Income-Tax v. Aimil Ltd. [2010] 321 ITR 508 (Delhi High Court); Commissioner of Income-Tax and another v. Sabari Enterprises [2008] 298 ITR 141 (Karnataka High Court).; Commissioner of Income Tax v. Pamwi Tissues Ltd. [2009] 313 ITR 137 (Bombay High Court).; Commissioner of Income-Tax, Udaipur v. Udaipur Dugdh Utpadak Sahakari Sandh Ltd. [2013] 35 taxmann.com 616 (Rajasthan High Court) and Nipso Polyfabriks (supra) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contribution (Section 36(1)(iv)) and employees' contribution required to be deposited by the employer (Section 36(1)(va)) was maintained - and continues to be maintained. On the other hand, Section 43B covers all deductions that are permissible as expenditures, or out-goings forming part of the assessee's liability. These include liabilities such as tax liability, cess duties etc. or interest liability having regard to the terms of the contract. Thus, timely payment of these alone entitle an assessee to the benefit of deduction from the total income. The essential objective of Section 43B is to ensure that if assessees are following the mercantile method of accounting, nevertheless, the deduction of such liabilities, based only on book entries, would not be given. To pass muster, actual payments were a necessary pre-condition for allowing the expenditure. 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 of the employers' income, and the later retains its character as an in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
