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2022 (11) TMI 1327 - AT - Income TaxDelayed payment of employee’s contribution to ESI and PF - Payment made by the assessee beyond the due date by invoking the provisions of section 36(1)(va) - Assessment u/s 143(1) - HELD THAT:- It is not disputed that as per the decision of CHECKMATE SERVICES PVT LTD [2022 (10) TMI 617 - SUPREME COURT] decided the issue on allowability/treatment of ‘delayed’ Employee PF Contribution payment in hands of assessee under provisions of Income Tax Act and held that Section 36(1)(va) and Section 43B(b) operate on totally different equilibriums and have different parameters for due dates, i.e., employee's contribution is linked to payment before the due dates specified in the respective Acts and employer's contribution is linked to payment before the due dates specified in the respective Acts and employer's contribution is linked to the payment before the prescribed due date for filing of return u/s. 139(1) - The result of any failure to pay within the prescribed dates also leads to different results. In the case of employee's contribution, any failure to pay within the prescribed due date under the respective PF Act or Scheme will result in negating employer's claim for deduction permanently forever u/s.36(1)(va). On the other hand, delay in payment of employer's contribution is visited with deferment of deduction on payment basis u/s.43B and is therefore not lost totally. Therefore as per the above decision, the disallowance made by the Revenue authorities were fully justified. As clear from Intimation u/s 143(1) the disallowance has been made on the basis of audit report in Form 3CD wherein the fact that employees contribution was paid beyond the date of ESI and PF and hence not allowable as deduction under section 36(1)(va) of the Act has been clearly mentioned. The mere fact that the wordings “as there has been no response”, in the intimation referred to earlier has not been struck off, it cannot be presumed that the reply of the assessee dated 29.2.2020 has not been considered while issuing the intimation under section 143(1) of the Act. We are of the view that the disallowance under section 143(1)(a) of the Act is valid in view of the decision made by Hon’ble Supreme Court in the case of Checkmate services (supra). - Decided against assessee.
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