Diebold Nixdorf India Private Limited Vs CIT (ITAT Mumbai)
ITAT Mumbai held that as per section 36(1)(va) delayed payment of PF & ESIC has to be treated as income of the assessee. Hence, alternate claim of deduction of the same u/s. 37(1) of the Act is not acceptable.
Facts- During assessment proceedings, AO noticed that payment towards employees contribution to PF & ESIC was not made within due date and hence the same was liable to be disallowed. First Appellate Authority sustained the same. However, assessee has made alternate deduction of the same under section 37 of the Income Tax Act.
Conclusion- Held that this claim of the assessee has to be rejected at the threshold in view of the position of law declared by the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd Vs. CIT (supra). Once the Hon’ble Supreme Court has decided that delayed payment of employee’s contribution to PF & ESIC cannot be allowed as deduction, the assessee cannot expect the very same relief under another provision. More so, when section 36(1)(va) of the Act mandates that such contribution has to be treated as ‘income of the assessee’. Insofar as, the judicial precedents relied upon by the learned counsel of the assessee, on a careful perusal, we are of the view that in none of the decisions the alternate claim of deduction u/s. 37(1) of the Act has been accepted.
