TMI Blog2022 (2) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... ese appeals are filed by the assessee against the orders of Commissioner of Income Tax (Appeals) [for short, CIT(A) ], National Faceless Appeal Centre in order Nos.ITBA/NFAC/S/250/ 2021-22/1035664690(1) and ITBA/NFAC/S/250/2021-22/ 1035665018(1) both dated 17/09/2021 for the A.Ys.2018-19 2019-20 respectively. Since facts and issues in both the appeals are common, clubbed and heard together and disposed of by way of this consolidated order. ITA No. 184/VIZ/2021 2. The assessee has raised the following grounds of appeal:- 1. The National Faceless Appeal Centre, (NFAC for short) Delhi is not justified in dismissing the appeal of the assessee in limine as being belated for the reason that: i. NFAC has considered the date of uploading the intimation under section 143(1)(a) in the registered account of the assessee on the ITBA portal in the absence of any SMS alert on the registered mobile number or email on the registered e mail Id of the assessee. ii. NFAC has not considered the CBDT Circular No. 10/2021 extending the period of limitation with respect to appeals falling due for filing on or after 15.03.2020 in obedience to the Honourable Supreme Court decision on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.DR has accepted the same. 8. Based on the decision of the Hon'ble Supreme Court in Misc. Application No. 665/2021 read with CBDT circular No. 10/2021 dated 25/05/2021, the period of limitation is to be considered after excluding the period from 15/03/2020 to 14/03/2021. 9. Respectfully following the directions of the Hon'ble Supreme Court, the order passed by the ld.CIT(A) is hereby quashed. 10. Ld.AR further argued that there is a delay in payment of ₹ 3,90,877/- being employees contribution to the PF ESI under the respective Acts, but the same has been paid on or before the due date of filing of return u/sec. 139(1) of the Act. 11. Ld.DR accepted the fact that the payment has been made before due date of filing of return u/sec. 139(1) of the Act. 12. We have heard both the parties and perused the material placed on record. In the instant case, there is no dispute that the return was processed u/s 143(1) and there was no scrutiny assessment made u/s 143(3) of the Act. It is settled issue that no debatable issues are permitted to be made adjustments u/s 143(1) of the Act. In the instant case, what was added in the intimation u/s 143(1) was the empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter considering the decision of Hon ble Karnataka High Court in the case of Essae Teraoka (P) Ltd. Vs. DCIT 366 ITR 408 and the decision of coordinate bench of ITAT Hyderabad in the case of Tetra Soft (India) Pvt. Ltd. Vs. ACIT (2015) 40 ITR (Trib) 470 and also taking support from the decision of Hon ble Supreme Court in the case of CIT Vs. M/s Vegetables Products Ltd., 88 ITR 192, decided the issue in favour of the assessee. For the sake of clarity and convenience, we extract para No.5 to 10 which reads as under: 5. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. The A.O. made additions towards belated payment of employees contributions to PF. According to the A.O., employees contribution to provident fund is deductible under the provisions of section 36(1)(va) of the Act, if the same is paid on or before the due date specified under the provident fund Act. The A.O. further was of the opinion that in view of the clear provisions of section 2(24)(x) r.w.s. 36(1)(va) of the Act, any recovery from employees towards provident fund contribution is deemed to be income of the assessee, if the employer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the PF Act. Under the said Act, the employer shall contribute both employees and employer share along with administrative charges before the due date specified under the PF Act. The Act prescribed only one due date for depositing the contribution i.e. 15th of subsequent month with the grace period of 5 days which indicates that there is no difference between employee and employer contribution. If the legislature intends to differentiate employees and employer contribution, then there would have been two due dates like in the case of Income Tax Act. Therefore, from the above, it is clear that the Provident Fund Act does not differentiate employees and employer contribution and contribution means both employees and employer contribution under the PF scheme. 7. Section 43B of the Act provides for certain deductions to be allowed only on actual payment basis. Sub clause (b) of section 43B of the Act covers any sum payable by the assessee as an employer by way of contribution to any Provident fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees. The proviso to section provides that any sum paid by the assessee on or before the due da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of CIT Vs. State Bank of Bikaner, the Hon ble Rajasthan High Court held that contribution paid after the due date under the respective Act, but before filing the return of income u/s 139(1) of the Act cannot be disallowed u/s 43B of the Act and or u/s 36(1)(va) of the Act. 9. The Ld. D.R. relied upon the decision of Hon ble High Court of Kerala, in the case of CIT vs. Merchem Ltd, reported in (2015) 378 ITR 443 and submitted that employees contribution to provident fund is allowed as deduction, if the same is deposited on or before the due date specified under the provisions of provident fund Act. The D.R. also relied upon the decision of Gujarat High Court, reported in (2014) 366 ITR 170, wherein the Hon ble Gujarat High Court held that since assessee had not deposited said contribution to respective fund account on the date as prescribed in explanation to section 36(1)(va) of the Act, disallowance made by the A.O. was just and proper. Though, the D.R. relied upon certain judicial precedents which are in favour of the revenue, in view of the decision of Hon ble Supreme Court, in the case of CIT Vs. M/s. Vegetables Products Ltd. reported in 88 ITR 192, wherein the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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