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2023 (5) TMI 1274 - AT - Income TaxDelayed payment of Employees Contribution to Employees Provided Fund/ESI - Intimation u/s 143(1) - AO held it as the assessee’s income u/s 36(1)(va) r.w.s 2(24)(x) while processing his return of income u/s.143(1) - HELD THAT:- The issue involved in the present appeal is squarely covered by the order of Kalpesh Synthetics (P) Ltd. Vs. DCIT [2022 (5) TMI 461 - ITAT MUMBAI] wherein held that when the due date under Explanation to Section 36(1)(va) is judicially held to be not decisive for determining the disallowance in the computation of total income, there is no good reason to proceed on the basis that the payments having been made after this due date is “indicative” of the disallowance of expenditure in question. While preparing the tax audit report, the auditor is expected to report the information as per the provisions of the Act, and the tax auditor has done that, but that information ceases to be relevant because, in terms of the law laid down by Hon’ble Courts, which binds all of us as much as the enacted legislation does, the said disallowance does not come into play when the payment is made well before the due date of filing the income tax return under section 139(1). Thus reporting of payment beyond this due date in the tax audit report constituted “disallowance of expenditure indicated in the audit report but not taking into account in the computation of total income in the return” as is sine qua non for disallowance of Section 143(1)(a)(iv). We thus respectfully follow the same and vacate the addition as summarily made by the A.O, CPC u/s.143(1)(a) - Decided in favour of assessee.
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