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TMI Blog2025 (4) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... by taxpayers in coping with the challenges posed by COVID-19 pandemic." Consequently, appeal is liable to be allowed. 2. Because, CIT (Appeal) has erred in law and on facts in holding as under:- "The appellant has invited attention to order in Suo Moto Writ Petition (civil) No.03 o 2020 dated 08/03/2021. This Writ Petition does not cover the issue involved in the instant case." 3. Because, the CIT (Appeal) has erred in law and on facts in confirming disallowance of Rs. 43,04,355/- and ignoring the extension of limitation under the various laws of Central and State Government in Suo- Moto Writ Petition (Civil) No. 03 of 2020 dated 08/03/2021 pronounced by the Hon'ble Supreme Court of India. 4. Because, the delay in depositing Provident Fund and ESI by a day or two stand extended due to sald COVID-19 pandemic in terms of decision of Hon'ble Supreme Court. Consequently, disallowance made is liable to be deleted. 5. Because, returned income has been accepted in the order passed Under Section 143 (3) of the Act dated 21/12/2022 without any addition, whatsoever hence the addition made for a sum of Rs. 43,04,355/- in the order passed Under Section 143(1) of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that they had to be deposited in terms of the timeline given in those welfare enactments. Therefore, the ld. Addl/JCIT(A) issued a show cause to the assessee as to why his appeal should not be disallowed. In response to the notice issued under section 250, the assessee invited the attention of the ld. Addl CIT/JCIT(A) to the order of the Hon'ble Supreme Court of India in Suo Moto Writ Petition (Civil) No.03 of 2020 dated 8.03.2021, whereby due to the onset of the Covid-19 Pandemic, extension of limitation under the various laws of the State and Central Government had been granted and dates had been extended. It enclosed a copy of the order of the Hon'ble Supreme Court in the said matter, and submitted that since the payment made by the appellant was within the extended period allowed by the Hon'ble Supreme Court of India, in terms of the decision referred, consequently no disallowance on this score was called for a sum of Rs.43,04,355/-. The ld. Addl /JCIT(A) considered the matter and held that the writ petition did not cover the issue involved in the instant case, while the decision of the Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. vs. Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, and any other laws in which prescribed periods of limitation for instituting the proceedings, outer limits (within which the Court or Tribunal can condone delay) and termination of proceedings. The ld. AR further argued that vide its subsequent order dated 10.01.2022, the period of exclusion was extended up till 28.02.2022 and this was for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi- judicial, the other conditions being the same as ordered by them earlier. In view of this order of the Hon'ble Supreme Court, the ld. AR submitted that the period limitation for the deposit of employees' contribution to provident fund had automatically been extended and therefore, the delay, if any, should be condoned in view of these circumstances. The ld. AR further drew our attention to the fact that this was an appeal against the processing of the case under section 143(1). However, subsequently, the case had been selected for scrutiny under section 143(3) and in the same, the returned income had been accepted. It was submitted that all the documents had been filed including the tax audit report, Form 3CD etc., and the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not presenting it within that period and consequent to the order of the Hon'ble Supreme Court in Suo Moto Writ Petition (Civil) No.03 of 2020, the Hon'ble ITAT had been admitting appeals, excluding the earmarked period and condoning any further delay on account of the Covid Pandemic. But these orders of the Hon'ble Supreme Court did not pertain to any extension of limitation for payment of statutory dues. The ld. Sr. DR pointed out that the extension notification for the same, could only be issued by the concerned Departments. He also cited the instance of the notification dated 12.01.2017 produced by the ld. AR, to show that it was the Government Departments that issued notification for extension, in case of any difficulty being faced by assessees in paying statutory dues within time. He argued that since the Hon'ble Supreme Court was concerned with the administration of appeals, it had issued the direction for exclusion of period to mitigate the difficulties of litigants in filing of appeal. However, this did not extend to payment of statutory dues, for which the Government was the only empowered authority to extend the dates and the ld. AR had not brought any material on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally, with regard to the ld. AR's submission that the Attorney General had suggested the exclusion of period for limitation before the Hon'ble Supreme Court, the ld. Sr. DR submitted that the Attorney General was a part of the Executive, he was only helping the judiciary and this facility had been given for litigants facing difficulty in approaching the Court during the course of pandemic. Nothing more should be read into the order of the Hon'ble Supreme Court other than what was contained therein. 8. Exercising his right to reply, the ld. AR drew our attention to the decision of the Hon'ble Allahabad High Court in the case of M/s Shagun Foundary vs CIT in ITA. No.87 of 2006 which had held in the favour of the assessee and pointed out that the issue was debatable because different Hon'ble High Courts had given different decision. With regard to the decision taken by the ld. AO under section 143(3), the ld. AR pointed out that a copy of the Audit report in Form 3CD had been submitted before the ld. AO during the course of assessment and therefore, his decision to not make the addition in this regard was a conscious decision. The ld. AR further reiterated that because section 143( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, dated 12.01.2017 which has, having regard to the difficulties faced by the employers due to the Covid 19 Pandemic, extended the due date for payment of contributions by employers. Therefore, we are inclined to accept the view of the ld. Addl/JCIT(A) that the assessee continues to be governed by the ratio of the Hon'ble Supreme Court in Checkmate Services P. Limited vs. CIT-1, (2022) 143 taxman.com 178 (SC) and any delay in deposit of employees contribution to PF/ESI beyond the due date as prescribed in those Acts cannot be condoned. 10. The next issue that has been raised by the ld. AR is that subsequent to the order under section 143(1), the case was taken up for scrutiny under section 143(3) and the ld. AO in those proceedings has accepted the returned income of the assessee. Thereby, the ld. AO has accepted the contention of the assessee that addition was not required to be made in respect of delayed contribution to EPF / ESI and since the order under section 143(3) stood on a higher footing, therefore in the light of this order under section 143(3), the assessee's appeal in the present case should be allowed. We have considered the judgment of the Hon'ble ITAT in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust the jurisdiction of the assessing officer under section 143(1).The issue has been well summed up by the Ranchi Bench of the Tribunal in the case of Nepal Chandra Dey Vs ACIT (2023) 152 Taxmann.com 221 (Ranchi-Trib) wherein our "ld brothers have held, "It has been held time and again that law declared by a court will have retrospective effect, if not otherwise stated to be so specifically. It is also a well settled proposition that whenever, a previous decision is overruled by a larger bench of the Supreme Court, the previous decision is completely wiped out and article 141 will have no application to the decision which has already been overruled and the court would have to decide the cases according to the law laid down by the latest decision of the Hon'ble supreme Court and not by the decision which has been expressly overruled. The above reasoning stems from the principle that when a court decides a matter, it is not as if it is making any new law but it is as it is only restating what the law has always been. The Reliance in this respect can be placed on the decision of the Hon Supreme Court in the case of Ramdas Bhikaji Chaudhari vs Sadanand (1980)1 SCC 550 and on the recen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in PR Packaging (supra), we note that the Hon Ranchi Bench in the case of Nepal Chandra Dey(supra), has pointed out that there is a prescribed form for submitting the audit report and the auditor is supposed to furnish the information as per the prescribed columns of form 3CD. They have noted that under clause 20B of the prescribed form, the auditor is supposed to furnish information regarding nature of fund, sum receipts from employee, due date of payment and actual date of payment to the authorities. This information itself indicates the allowability or dis- allowability of an item while processing a return. The Auditor is not required to specifically mention what disallowance or what amount of disallowance is to be made under 36(1)(va) in the prescribed form and therefore, "indicated in the audit report" means that when some information in the audit report is suggestive of a disallowance, which has not been taken into account by the assessee in computing his total income in the return, then there is no bar to the adjustment on this account while processing the return of income and since notice has to be given before adjustment, the principles of natural justice are also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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