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2023 (5) TMI 1283 - AT - Income TaxLate payment of PF and ESIC contribution - amount deposited before the due date of filing of the Income Tax Return - disallowance in the intimation passed u/s. 143(1) - HELD THAT:- We note that identical issue is dealt by us recently and decided against the assessee by the Co-ordinate Bench of the Tribunal [2023 (4) TMI 1281 - ITAT INDORE] after taking into account the latest judgment of Checkmate Services (P.) Ltd.[2022 (10) TMI 617 - SUPREME COURT] held that non obstante clause under section 43B could not apply in case of employee's contribution which were deducted from their income and was not part of assessee-employer's income and, thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction. Contention of the assessee CPC should not have made the disallowance u/s. 36(1)(va) in 143(1) proceedings which is a debatable and controversial issue by different High Courts - he provisions of Section 143(1)(a) deals with the total income or loss shall be computed after making the following adjustments namely “(ii) an incorrect claim, if such incorrect claim is apparent from any information in the return”. Thus we are of the considered opinion as per the first proviso to section 143(1)(a), CPC had given a communication dated 19.02.2019 to the assessee, why not to make a disallowance 36(1)(va) being the late payment of PF and ESIC. However the assessee has not responded to the communication issued by the CPC. It is, thereafter as per section 143(1)(a)(ii), being an incorrect claim made by the assessee, which is apparent from the information filed in the Return of Income, thus the CPC rightly made the disallowance, which is well within the provisions of law. Thus we are of the considered view, the disallowance of late payment of PF & ESIC made u/s. 143(1) is valid in law. Thus the grounds of appeal raised by the assessee are devoid of merits. The case laws relied by the assessee are prior to the judgment passed by the Hon’ble Supreme Court in the case of Checkmate Services (P.) Ltd.[supra] Thus the grounds raised by the assessee are hereby dismissed.
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