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TMI Blog2024 (6) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... olkata / NFAC vide DIN Order No. ITBA/APL/S/250/2023-24/1059250049(1) dated 01.01.2024 passed u/s. 250 of the IT Act for the A.Y. 2019-20. 2. The assessee has raised the following grounds: Grounds of Appeal Tax effect relating to each ground of appeal (see note below) 1. The learned CIT(A) erred in passing the order in the manner he did. Gen 2. The learned CIT(A) ought to have appreciated that the amount of Employee's share to ESI and PF was paid within the due date as per EPF and ESI act. Hence disallowance as made is bad in law. 3. The learned CIT(A) ought to have appreciated that as per clause 38 of Employees provident fund scheme 1952, payment of contribution of employees share should be made within 15 days from the end of the month during which disbursement of salary. 77,56,571/- 4. Without prejudice, the impugned additions are excessively arbitrary and unreasonable and liable to be deleted in full. Gen 5. For these and such other grounds that may be urged at the time of hearing the appellant prays that the appeal may be allowed. Gen Total tax effect (see note below) 77,56,571/- 3. The brief facts of the case are that the assessee is running the business of manpower agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate as per PF ESI Act even though it is deposited within the due date of filing the return r.w.s. 43B of the IT Act, 1961. Further the Ld. DR relying on the decision of the ITAT A Bench, Bangalore in the case of Sri Elavarthy Ramana Reddy vs. DCIT in ITA No. 806/Bang/2023 vide order dated 14.12.2023. As can be seen in the grounds of appeal filed before the First Appellate Authority, the assessee has contended that although there was delay in remittance of employees contribution to ESI/EPF as per the relevant statutes but they were paid well before the due date of filing return of income. Whereas before us the Ld AR argued that the amount of Employee s share to ESI PF was paid within the due date as per EPF ESI Act since as per clause 38 of Employees provident fund scheme 1952, the payment of contribution of employee s share should be made within 15 days from the end of the month during which disbursement of Salary. 6. We have heard the rival submissions and perused the material available on record. 7. The Ground No. 1, 4 5 are general in nature does not require any adjudication. 8. With regard to Ground No. 2 3 of the Assessee that the amount of Employee s share to ESI PF was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit at that stage. 10.3 The ld. A.R. though did not dispute this position submitted that, what would be the due date for deposit of the employees contribution to the PF would have to be computed from the date when the employer pays salary to such employees. He has referred to section 38 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 in his argument in support. 10.4 He thus submitted that in terms of section 38 of the Act, Employees provident fund and Miscellaneous Provisions Act, 1952 refers to the time limit for depositing the contribution within 15 days of the close of the month must be to the month in which the salary payment is made. He submitted that the entire additional evidence filed before this Tribunal establishes that there is a delay in paying salary to the employees and therefore, if that is taken into consideration, there cannot be any delay that would be attributable towards the deposit of employees contribution to the relevant fund. He also submitted only a minor amount would fall within the purview of disallowance u/s 36(1)(va) of the Act. The ld. A.R. thus prayed that the additional evidence filed by assessee may be admitted and the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and administrative charge]: Provided that the Central Provident Fund Commissioner may for reasons to be recorded in writing, allow any employer or class of employer to deposit the contributions by any other mode other than internet banking 10.8 The above provision requires an employer to deduct the employees contribution before paying the employee his wages and further requires to deposit such contribution withheld by the employer along with employer s own contribution to the relevant fund held by the Government. It is further requires that the employer shall within 15 days of the close of every month pay the same to such fund along with administrative charges. It is thus; clear that after deducting the employees contribution towards the fund the same has to be deposited with the Government within 15 days of the close of every month. In our opinion, reference to 15 days of the close of every month has to be in relation to the month during which the payment of wages is to be made and the corresponding liability to deduct employees contribution to such fund immediately arises. Further, the expression within 15 days of the close of every month , therefore, must be interpreted as hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally filed by the assessee is wrong as the auditor mentioned single date of remittance though there were multiple dates of remittances in each month. 10.13 The ld. A.R. pleaded before us that audit report is wrongly prepared by the tax auditor for which there is no evidence brought on record regarding any confirmation from the tax auditor. In our opinion, such arguments to tarnish a professional are not appreciated. Based on the above discussion, we do not find any merit to consider the same. 10.14 We, therefore, do not find any merit in the new argument raised by the assessee in additional ground No.2 requesting to remand the issue back to the Ld. AO to verify the claim of disallowance in the light of the additional evidences filed by assessee. We, therefore, dismiss additional ground No.2 raised the assessee, as such argument is not in consonance with the provisions of Section 38 under Employees Provident Fund and Miscellaneous Provisions Act, 1952. Accordingly, the additional ground nos. 2-3 raised by assessees stands dismissed in all the appeals. 10.15 In the main ground No.2, the assessee has commonly raised the following issue, which has been reproduced from ITA No.578/Bang/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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