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TMI Blog2023 (6) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion in the matter. AO shall determine the issues involved in accordance with law after giving proper opportunity. - SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER For the Appellant :Shri Vijay Kumar Singla, CA For the Respondent :Shri S.L. Anuragi, Sr.DR ORDER PER PRADIP KUMAR KEDIA, A.M.: The captioned appeals have been filed by the assessee against the separate orders of the ld. Commissioner of Income Tax ( Appeals)- NFAC, Delhi ( CIT(A) in short) dated 12. 12. 2022 and 07.12.2022 arising from the intimation orders dated 05.11.2019 18.09.2020 passed by the Assessing Officer (AO) under Section 143(1) of the Income Tax Act, 1961 ( the Act) concerning AYs 2018-19 2019-20 respectively. 2. The cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned appeals. 7. When the matter was called for hearing, the ld. counsel for the assessee submits at the outset that such adjustments/ disallowances for alleged delay in deposit of employees contribution to PF/ ESIC is not permissible while drawing intimation under S. 143(1) of the Act having regard to several tribunal decisions. 7.1 The ld. Counsel next contends that the assessee in the instant case, is a labour contractor and engaged in profession of supply of security man powers to various factories where such security man power is employed. In the back drop of nature of work, the ld. Counsel contends that the salary in such business is often disbursed to the employees as and when the funds are arranged from the clients. Owing to belated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/- with the aid of S. 40( a)(ia) on account of non-deduction of TDS on interest was also assailed on the ground that the assessee cannot be treated as assessee in default in the facts of present case. 8. The ld. DR for the Revenue, on the other hand, relied upon the orders of the lower authorities. 9. We have carefully considered the rival submissions and perused the material available on record. The disallowance of employees contribution to PF/ESIC for breach of condition under Section 36(1)( va) is in controversy. 9.1 We notice at the outset that an opportunity was given via electronic platform of the deptt. for the proposed adjustments and in the absence of e-response, the adjustments were carried out the CPC- Bengluru and intimation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly covered within the ambit of Section 36(1)( va) of the Act. The Hon ble Supreme Court in the case of Checkmate Pvt. Ltd. (supra) itself explains this position in Para 32 of the Judgment. Such view also draws support from the observations made in recent judgment of the Hon ble Supreme Court in the case of Pr. CIT vs. Khyati Realtors (P) Ltd. (2022) 141 taxmann.com 461 (SC). The alternate plea is thus without any merit. 9.3 We also take note of yet another plea made out on behalf the assessee towards methodology of calculation of default under the relevant PF/ESIC Act. The Ld. Counsel contends that the month during which the disbursement of salary is actually made would be relevant for the purposes of determination of due date of deposit u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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