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2022 (9) TMI 1516 - AT - Income TaxDisallowance of deduction of ESI and PF claimed u/s. 36(1)(va) - HELD THAT:- Admittedly, the assessee has made these payments before the due date of filing of return of income u/s. 139(1) of the Act, but after the due date as prescribed under the respective acts of Provident Fund and ESI Act. Once this is a factual position, the issue is covered by the decision of Checkmate Services P. Ltd.[2022 (10) TMI 617 - SUPREME COURT] wherein it was held that the employees contribution of ESI and PF has to be remitted on or before the due date as prescribed under the respective statutes and not after that for making a claim. We dismiss the claim of the assessee. Disallowing the inconsistency in total amount claimed u/s. 37 - difference in reporting in ITR and claimed in Form No.3CD - HELD THAT:- The assessee has made a disallowance under the provisions of s. 37 of the Act, because there is no specific clause in tax audit report to report the amount to be considered for disallowance u/s. 40(a)(ii) of the Act. We find that there is some problem in the tax audit form or in the processing of return through CPC. But, in any case from the facts it is clear that these amounts are already disallowed by the assessee and nothing more is to be disallowed, because total disallowance practically comes to Rs. 21,02,846/- and for that purpose no separate disallowance u/s. 143(1) of the Act can be made for an amount of Rs. 8,24,846/-. We direct the A.O to allow the same. This issue of assessee’s appeal is allowed. Difference pertaining to payment made for gratuity to the employees which is of allowable expenditure as per Explanation 2 to s. 40A(7) - HELD THAT:- We are of the view that the deduction of gratuity is available in substantive law and it cannot be disallowed merely by the reference of inconsistent entries in explanation of s. 143(1)(a) of the Act being a procedural provisions, it shall not take away the right confirmed in s. 37 r/w s. 40A(7) and s. 36(1)(v) of the Act. We direct the A.O to delete this disallowance. This issue of assessee’s appeal is allowed.
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