Case Law Details

Case Name : Nirakar Security & Consultancy Services Pvt. Ltd. Vs ITO (ITAT Cuttack)
Appeal Number : ITA No. 98/CTK/2022
Date of Judgement/Order : 17/10/2022
Related Assessment Year : 2016-17

Nirakar Security & Consultancy Services Pvt. Ltd. Vs ITO (ITAT Cuttack)

Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd(supra) has categorically held that the employees contribution to PF and ESI to the extent it is not paid within due date prescribed under the PF Act, is not allowable u/s.36(1)(va) of the Act. The Hon’ble Supreme Court has also admittedly held that the provisions of section 43B would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution. However, as ld AR submitted that the employees contribution to PF and ESI has been paid in some cases within grace period provided under the respective Act and also in some cases the salary has been paid belatedly, consequently, there was delay in payment of employees contribution to PF and ESI. This issue is restored to the file of the Assessing Officer for reexamination and re-adjudication after granting the assessee adequate opportunity of being heard.

Liberty is granted to the ld AR to make all submissions in respect of allowability of disallowed contribution of the employees to PF and ESI under other relevant provisions in the interest of justice. This direction is being given because ld AR has submitted that as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be treated as income in the hands of the assessee u/.s.2(24)(x) and on subsequent payment of the same, it would be a business expenditure, which can be claimed u/s.37(1) of the Act.

FULL TEXT OF THE ORDER OF ITAT CUTTACK

This is an appeal filed by the assessee against the order of the ld CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 30.3.2022 in Appeal No.ITBA/NFAC/S/250/2021 -22/1042034770(1) for the assessment year 2016-17.

2. Shri K.K.Bal, ld AR appeared for the assessee and S.C.Mohanty, ld Sr DR appeared for the revenue.

3. It was submitted by ld AR that the issue involved in this appeal is delayed payment of PF and ESI in respect of employees contribution. It was submitted by ld AR that the payments have been made within the grace period of 5 days in some cases and in some cases, there has been delay in payment in respect of salary itself, which consequently affect the payment of PF and ESI. It was the prayer that the issue may be restored to the file of the Assessing Officer for verification and re-adjudication.

4. In reply, ld Sr DR submitted that the issue is now squarely covered by the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd vs CIT in Civil Appeal No.2833 of 2016 dated 12.10.2022, wherein, the Hon’ble Supreme Court has categorically held that if the employees contribution to PF and ESI has been paid beyond the time prescribed under the relevant PF Act, then same is not allowable under section 43B even after the payment has been made before the due date of filing of return under the Income tax Act. It was the submission that the amount of employees contribution to PF and ESI, which has not been paid within the due date as prescribed under the relevant Act, has been held by Hon’ble Supreme Court to be not allowable u/s.36(1)(va) of the Act. It was the submission that the Hon’ble Supreme Court in paras 52 & 53 has also categorically held that the provisions of section 43B would not apply to the employees’ contribution to PF and ESI.

5. We have considered the rival submissions. Admittedly, the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd(supra) has categorically held that the employees contribution to PF and ESI to the extent it is not paid within due date prescribed under the PF Act, is not allowable u/s.36(1)(va) of the Act. The Hon’ble Supreme Court has also admittedly held that the provisions of section 43B would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution. However, as ld AR submitted that the employees contribution to PF and ESI has been paid in some cases within grace period provided under the respective Act and also in some cases the salary has been paid belatedly, consequently, there was delay in payment of employees contribution to PF and ESI. This issue is restored to the file of the Assessing Officer for reexamination and re-adjudication after granting the assessee adequate opportunity of being heard.

6. Liberty is granted to the ld AR to make all submissions in respect of allowability of disallowed contribution of the employees to PF and ESI under other relevant provisions in the interest of justice. This direction is being given because ld AR has submitted that as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be treated as income in the hands of the assessee u/.s.2(24)(x) and on subsequent payment of the same, it would be a business expenditure, which can be claimed u/s.37(1) of the Act. We are not expressing any opinion in regard to his arguments as it has not been examined by the lower authorities. Liberty is also granted to the assessee to raise all arguments as are found necessary by him before the lower authorities.

7. In the result, appeal of the assessee stands partly allowed for statistical purposes.

Order dictated and pronounced in the open court on 17/10/2022.

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