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TMI Blog2023 (7) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... diture prescribed in Sections 30 to 36 of the Act and also not being in the nature of capital expenditure or personal expenses of the assessee. Thus, in view of such mandate of law, the deduction of expenditure under the general clause of Section 37(1) would not extend to expenditure specially covered within the ambit of Section 36(1)(va) of the Act. The Hon ble Supreme Court in the case of Checkmate Pvt. Ltd. [ 2022 (10) TMI 617 - SUPREME COURT] itself explains this position - Such view also draws support from the observations made in recent judgment in the case of Pr.CIT vs. Khyati Realtors (P) Ltd. [ 2022 (8) TMI 1141 - SUPREME COURT] . The alternate plea is thus without any merit. Methodology of calculation of default under the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of CIT(A)-28 New Delhi dated 29.08.2022 for AY 2019-20. 2. The grounds of revenue are as follows:- 1. Whether on the facts and circumstances of the case, the Ld. CIT (A) is correct on facts and in law in deleting the addition of Rs. 2,63,96,393/- on account of employees' contribution to PF ESI even when the same was deposited by the employer after the due date as specified in respective Statutes. 2. Whether the facts and circumstances of the case, the Ld. CIT (A) is correct in deleting the addition of Rs. 2,63,96,393/- on account of late deposit of employees' contribution to PF ESI ignoring the provisions of section 2(24)(x) r.w. 36(1)(ra) of IT Act, 1961. 3. Whether on the facts and circumstances of the case, the Ld. CIT (A) is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of assessee and simultaneously controverting the grounds of revenue submitted that the additions/disallowance made by the Assessing Officer by passing the order under Section 143(1) are illegal, bad in law without jurisdiction as the AO-CPC erred in law as well as on merits in making addition / adjustment of Rs. 2,63,96,393/-for the PF and ESIC contribution of the employees deposited beyond the due date as per PF and ESIC Act but within the time allowed to file the IT Us. 139 (1) and deposited before filing I.T. return. He further contended that under the facts and circumstances, the addition of Rs. 2,63,96,393/- for PF and ESIC contribution of employees deposited beyond the due date as per PF and ESIC Act but within the time allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Assessing Officer and all relevant arguments in support of its claim. 7. From the cross objections and submissions of ld. AR we note that the ld. AR 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. The ld. AR also submitted that alternatively the claim of assessee is allowable u/s. 37(1) of the Act and he has relied on certain orders of coordinate benches of Tribunal to support this plea. 8 The ld. AR further submits that the assessee, in the instant case, has shown business income from the business of building construction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out the CPC Bengaluru and intimation was issued enhancing the assessed income in the captioned assessment years. The CIT (A) in the first appeal has sustained the adjustments towards belated deposits of employees contribution to PF/ESIC in the light of the judgment rendered by the Hon ble Supreme Court in Checkmate Pvt. Ltd. vs. CIT, (2022) 143 taxmann.com 178 (SC). The contention of the Assessee that such additions cannot be made under the umbrella of S. 143(1) is covered against the assessee the decision of the co-ordinate bench in the case of Weather Comfort Engineers Private Limited vs. ACIT-CPC ITA No. 959/Del/2021 order dated 15/02/2023. The action of CPC and CIT (A) thus cannot be faulted where some opportunity was admittedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses of determination of due date of deposit under the respective statute. The accrual of liability towards payment of salary without actual disbursement would not fasten obligation for deposits of employees contribution in the labour Acts per se. as observed by the co-ordinate bench in Kanoi Paper and Industries Ltd. vs. ACIT (2002) 75 TTJ 448 (Cal). This aspect has not been found to be examined by the Assessing Officer or CIT(A). Hence without expressing any opinion on merits on this aspect, we deem it expedient to restore the matter to the file of designated AO. It shall be open to the assessee to place factual matrix before the AO and take such plea for evaluation of the AO. The AO shall examine this aspect and fresh order in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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