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2022 (8) TMI 785 - ITAT AHMEDABADLate payment of Employees' contribution to E.S.I. - Addition u/s 36(1)(va) r.w.s. 43B - whether disallowance on account of late deposit of ESI can be subject of matter of addition/adjustment under intimation issued u/s 143(1) ? - HELD THAT:- We note that the issue is squarely covered against the assessee in case of Gujarat State Road Transportation Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it was held that where assessee did not deposit employees' contribution to employees' account in relevant fund before due date prescribed in Explanation to section 36(1)(va), no deduction would be admissible even though he deposits same before due date u/s 43B of the Act. Again, the Gujarat High Court in the case of Pr. CIT v. Suzlon Energy Ltd. [2020 (2) TMI 792 - GUJARAT HIGH COURT] held that where assessee had not deposited employees' contributions towards PF and ESI within prescribed period in law and Assessing Officer by invoking provisions of section 36(1)(va) read with section 2(24)(x) made addition of aforesaid amount to income of assessee, impugned addition made to income of assessee was justified. Respectfully following the above decisions of Jurisdictional High Gujarat High Court, we hold that there is no infirmity in the order passed by ld. CIT(A). Adjustment u/s 143(1) - Addition/adjustment under intimation issued u/s 143(1) of the Act since the issue is a debatable one wherein various Courts/ Tribunals have taken a divergent view in the matter, in our the view, the issue stands covered by the decision of Ahmedabad ITAT in the case of Diversified Services [2022 (5) TMI 1433 - ITAT AHMEDABAD] wherein ITAT held that since the jurisdictional Gujarat High Court has decided the issue against the assessee, the same can be subject matter of adjustments u/s 143(1) CIT(Appeals) has not erred in facts and in law in confirming addition/ disallowance in respect of late payment of ESI in the instant set of facts. In the result, the appeal of the assessee is dismissed.
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