TMI Blog2021 (7) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... t before the due date of the filing of the return of income is an incorrect claim. We find that the claim of the assessee is supported by the decision of the Honourable jurisdictional High Court and hence it cannot be said to be an incorrect claim. With respect to the second adjustments was merely an error of grouping of an adjustment of income shown in the annual accounts of the assessee for arriving at correct taxable income. It is not the case of the centralized processing centre that income has been incorrectly computed by assessee. Therefore, both the adjustment made by the centralized processing centre for which assessee disagreed and with respect to the disallowance u/s 36 (1) (va) supported it with several judicial precedents of the jurisdictional honourable High Court as well as the honourable Supreme Court making it clearly beyond the purview of an incorrect claim. Profit on sale of assets as per books of accounts - Adjustment proposed is merely an error of grouping which does not make any impact on the total income. The adjustment made by the centralized processing centre has been incorrectly made resulting in double addition - Thus, both the adjustment proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the case of CIT vs. Bharat Hotels ltd. (2018) 410 ITR 417(Del.) which was rendered on September 6, 2018. The decision relied upon by the assessee in the case of CIT vs. Aimil Ltd.(supra) has been ignored on the ground that as per well settled law if two decisions are delivered by a Bench of equal strength, the later decision may be followed and which was also done by the Delhi ITAT in its decision rendered on December 12, 2019. Ld. CIT (A) has acted in violation of principle of natural justice as he did not confront the decision in the case of Bharat Hotels (supra) which was relied upon by him. In the process he has ignored another later decision of Delhi High Court of equal strength in the case of PCIT vs Pro Interactive Services (India) Pvt. Ltd. decision dated September 10, 2018 in ITA No. 938/2018. Even going by the logic adopted by Ld. CIT(A), the disallowance has been wrongly upheld. 2. Without prejudice to the above and in the alternative, the disallowance of ₹ 51,11,745/- could not be made in its entirety and referring to the facts and circumstances of the case, the payment only of ₹ 2,22,538/- (₹ 1,12,040 on 12-04-2017 + ₹ 1,10,498/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputing the total income in the income tax return u/s 143 (1) (a) (iv) stating that any sum received from employees as a contribution to any provident fund or superannuation fund or any fund set up Under the ESI act or any other fund only welfare of employees to the extent not credited to the employees account on or before the due date u/s 36 (1) (va) . The response submitted by the assessee states that this amount was duly deposited by assessee before the due date of filing of income tax return u/s 139 (1) of the income tax act the auditor has reportedly actual date and due date of payment of employees contribution towards the ESI and provident fund as mentioned in column number 20 (B) of tax audit report. The Honourable apex court and Hon. jurisdictional High Court judgments were also pressed. So it is amply clear that the due date as mentioned in the aforesaid Section was due date of filing of ROI. Some of the case laws stated are of Hon. apex court in CIT versus Alom Extrusion Ltd [2009] 319 ITR 306, , Delhi High Court in CIT versus AIMIL Ltd ITA number 1063/2008, Punjab and Haryana High Court in CIT FBD V Hemla embroidery Mills private limited. In the light of above, facts ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. He referred to the series of the decisions of Hon ble Delhi High Court on this matter and the decision of the CIT Vs. Bharat Hotels Ltd, which has been referred by the LD CIT (A). He submitted that in subsequent decision also the Hon ble Delhi High Court has also taken a view that employee s contribution of PF, if deposited before the due date of filing of return of income is not to be disallowed u/s 143 (1) of the income tax act. With respect to the addition of ₹ 7,75,519/- he demonstrated that it is a profit on sale of asset, which is wrongly bunched by the assessee, but for this reason, the addition cannot be made. He demonstrated that the treatment of the above sum for computation purpose has been correctly made. He referred to copy of the ledger account of the assessee and Profit and loss account . Thus, he submitted that the adjustment made by the centralized processing centre are erroneous and the learned CIT A was also in error in directing the learned assessing officer to verify the claim of the assessing relying on the decision of the honourable Delhi High Court which is against the assessee so far as the issue of deposit of provident fund of employees contri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee of deduction of deposit of employees provident fund contribution to the credit of the employees account though beyond the due date described Under the respective provident fund act but before the due date of the filing of the return of income is an incorrect claim. We find that the claim of the assessee is supported by the decision of the Honourable jurisdictional High Court and hence it cannot be said to be an incorrect claim. With respect to the second adjustments was merely an error of grouping of an adjustment of income shown in the annual accounts of the assessee for arriving at correct taxable income. It is not the case of the centralized processing centre that income has been incorrectly computed by assessee. Therefore, both the adjustment made by the centralized processing centre for which assessee disagreed and with respect to the disallowance u/s 36 (1) (va) supported it with several judicial precedents of the jurisdictional honourable High Court as well as the honourable Supreme Court making it clearly beyond the purview of an incorrect claim. Further the second of profit on sale of assets as per books of accounts, adjustment proposed is merely an error of group ..... X X X X Extracts X X X X X X X X Extracts X X X X
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