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TMI Blog2022 (8) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... are debatable one, i.e on which there are difference of opinions of various judicial forums, whereas AO is permitted to make adjustments while processing return only in respect of arithmetical error or incorrect claim as per law on which there is no dispute. 2. On the facts and in the circumstances of the case, CIT(A) erred in confirming action of DCIT(CPC) in making disallowance of Rs. 4,44,59,090/- by alleging that employees contribution to "Employee Provident Fund (EPF)" paid after the due date specified in the "Employees' Provident Funds and Miscellaneous Provisions Act, 1952" but before the due specified u/s 139(1) of the Income-tax Act, 1961 by invoking provision of section 36(1)(va) in spite of the fact said contribution was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 143(1). 5. The appellant reserves the right to add, amend or alter any ground or grounds of appeal at the time of hearing. 2. Out of the above grounds, ground No.4 has not been pressed by the assessee, therefore, the ground No.4 is dismissed as not pressed. 3. Brief facts of the case are that the assessee is a State Government Undertaking engaged in the business of generation of power in the State of Chhattisgarh and filed its return of income originally on 31.12.2018 through e-filing disclosing total income of Rs. Nil, showing a MAT liability of Rs. 43,33,74,802/-. Later on, the assessee filed a revised return on 30.03.2019 declaring total income of Rs.Nil. i.e. same as original return filed on 31.10.2018 but with a MAT liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and added back the said sum of Rs. 421,44,91,036/- in computation of income filed with revised return on 30.09.2019, therefore double addition is not permissible. In the result appeal was partly allowed by the CIT(A) NFAC. Now, the assessee is further appeal before the Tribunal to challenge the issues decided against it. 5. First we shall take up the legal ground raised by the assessee being ground No.1 regarding confirming the action of the DCIT(CPC) in making adjustments in intimation u/s.143(1) of the Act in respect of the issues which are debatable one, whereas the AO is permitted to make adjustment while processing the return only in respect of arithmetical error or incorrect claim. 6. On perusal of the intimation issued u/s.143(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dislodged, therefore, this ground of the assessee is dismissed. 7. Since ground No.1 in which the legal issue raised by the ld. AR has been dismissed, therefore, we are taking the other ground on merits. 8. Ground No.2 & 3 of the appeal are taken together to adjudicate, being disallowance of employees contribution to "Employee Provident Fund (EPF)" and Employee State Insurance Corporation (ESIC) paid after the due date specified in the relevant Acts but before the due specified u/s 139(1) of the Income-tax Act, 1961 by invoking provision of section 36(1)(va). 9. Ld. AR before us filed the copy of Form No.3CA and submitted that since the payment of employees contribution to "Employee Provident Fund (EPF)" and Employee State Insurance Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned it is not governed by section 43B but by section 2(24)(x) and 36(1)(va). The Cuttack Bench of the Tribunal in the case of Pashupati Ispat Pvt. Ltd. in ITA No.101/CTK/2021, vide order dated 06.04.2022 after discussing in detail and following the plethora of case laws, has held that it is not disputed that the payment of employees contribution to PF and ESI was made before filing of the return u/s.139(1) of the Act and accordingly deleted the addition made by the AO and confirmed by the CIT(A) on account of delay in depositing the employees contribution to PF & ESI. In view of the above judicial pronouncements as well as factual aspects, we are of the opinion that the payments of the employees contribution to PF & ESI having been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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