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2023 (2) TMI 907 - AT - Income TaxDisallowance being payment of employee’s contribution to ESI and PF - debatable issue - adjustment u/s.143(1) - Payment delayed but well before the prescribed due date of filing of return u/s.139(1) - HELD THAT:- The contention of the assessee that the issue of allowability of his claim for deduction of belated deposit of the employee’s share of contributions towards ESI & EPF was a debatable one, we are afraid would jeopardize the very maintainability of his application filed u/s.154 of the Act with the A.O. In case, the aforesaid claim of the assessee that the issue in question was a debatable one, is to be accepted, then, the remedy that was available with him against the adjustment made u/s.143(1) of the act was to prefer an appeal against the same before the CIT(Appeals) and not to carry the same before the A.O by way of an application u/s.154 of the Act. Be that as it may, the aforesaid judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. (2022 (10) TMI 617 - SUPREME COURT) not only seizes the issue in question and renders the matter as no more res-integra, but the same as per Article 141 of the Constitution of India is to be construed as a declaration of law by the Court and has to be given a retrospective application. On construing the judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. (supra) as a declaration of law as it always have been, the view taken by the A.O disallowing the assessee’s claim for deduction of delayed deposit of employees share of contribution towards ESI and EPF being in conformity with the aforesaid judgment of the Hon’ble Apex Court, thus, by no means could be held to be debatable. We, thus, in terms of our aforesaid deliberations are of the considered view that the claim of the assessee that the issue in hand was a debatable one, and thus, could not have been brought within the realm of Section 143(1) of the Act cannot be accepted. Appeal of the assessee is dismissed.
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