Income Tax Appellate Tribunal - Raipur
Shri Raj Kumar Bothra, Raipur vs Deputy Commissioner Of Income Tax, ... on 26 September, 2024
आयकर अपील य अ धकरण यायपीठ रायपुर म।
IN THE INCOME TAX APPELLATE TRIBUNAL,
RAIPUR BENCH, RAIPUR
BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER
AND
SHRI ARUN KHODPIA, ACCOUNTANT MEMBER
आयकर अपील सं. / ITA No. 377/RPR/2024
नधारण वष / Assessment Year : 2020-21
Shri Raj Kumar Bothra,
C-101/5, First Floor,
Tagore Nagar, Raipur-492 001 (C.G.)
PAN : ADEBP9688C
.......अपीलाथ / Appellant
बनाम / V/s.
The Deputy Commissioner of Income Tax,
Circle-2(1), Raipur (C.G.)
...... यथ / Respondent
Assessee by : Shri Sakshi Gopal Agrawal, CA
Revenue by : Dr. Priyanka Patel, Sr. DR
सन
ु वाई क तार ख / Date of Hearing : 24.09.2024
घोषणा क तार ख / Date of Pronouncement : 26.09.2024
2
Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur
ITA No. 377/RPR/2024
आदे श / ORDER
PER RAVISH SOOD, JM:
The present appeal filed by the assessee is directed against the order passed by the ADDL/JCIT(A)-3, Ahmedabad dated 15.07.2024, which in turn arises from the intimation issued by the Centralized Processing Centre (CPC)/A.O under Sec.143(1) of the Income-tax Act, 1961 (in short 'the Act') dated 16.12.2021 for the assessment year 2020-21. The assessee has assailed the impugned order on the following grounds of appeal before us:
"1. That on the facts and circumstances of the case and in law, the order of Id. Addl/JCIT(A)-3, Ahmedabad is wrong, untenable in law, opposed to facts and is liable to set aside.
2. The Ld. DCIT, CPC, Bengaluru has erred in making addition of Rs.28,21,065/- u/s.36(1)(va) towards payment of ESIC/EPF contribution (employee's share) by the appellant, without considering the fact that the proceedings u/s.143(1)(a) permits only prima-facie adjustments and a debatable issue falls outside the ambit of adjustment contemplated u/s.143 (1)(a).
3. The Ld. DCIT, CPC, Bengaluru and Id. Addl/JCIT(A)-3, Ahmedabad failed to appreciate the fact till 12.10.2022 (the day on which the Hon'ble Supreme court passed the order) the disallowance of belated employees contribution was a debatable issue and such adjustments cannot be made u/s.143(1)(a).
4. The Ld. DCIT, CPC, Bengaluru failed to consider the fact that the day on which the impugned intimation was passed (i.e., 16/12/2021) there were divergent views taken by different high courts leaving such issue to be debatable one arid therefore falls outside the scope of adjustments u/s.143(1)(a).
5. That, appellant reserves the right to add, amend, alter or withdraw any ground/grounds of appeal at the time of hearing."3
Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024
2. Succinctly stated, the assessee had e-filed his return of income for A.Y.2020-21 on 14.01.2021, declaring an income of Rs.3,76,34,910/-. The CPC/A.O, Bengaluru while processing the return of income u/s. 143(1) of the Act disallowed the assessee's claim for deduction of delayed deposit of employee's share of contribution towards ESI/EPF of Rs.28,21,065/- u/s. 36(1)(va) of the Act.
3. Aggrieved the assessee carried the matter in appeal before the ADDL/JCIT(A) but without success. For the sake of clarity, the observations of the ADDL/JCIT(A) are culled out as under:
"7.1 Ground no. 1 & 2: These grounds pertain to addition of belated payment of Rs.28,21,065/- being PF and ESIC u/s.36(1)(va) of IT Act. Appellant has furnished detailed submission and argued that the adjustment made by AO CPC is not correct and beyond purview of section 143(1) of IT Act. The appellant has relied on following decisions :
7.2 There is no dispute regarding delay in payment PF and ESIC.
7.3 The submission of the appellant is duly considered. The auditor in column no. 20(b) of the form no.3 CD has mentioned the details of PF & ESIC. The dates of payment and due dates are mentioned in the column no. 20(b) after 4 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 due verification of Challans of payment. From the details mentioned by the auditor, the due dates of payment and actual date of payment can be verified by the system used for the processing of return of income. When the payment is not made in due date as prescribed in respective acts, default can be easily identified on the face the audit report. Anyone including mechanical system can come to the conclusion about default prima facie after going through the column no.20(b) of form no.3CD signed by the nominated auditor of the appellant. This column no.20(b) is at par with other columns of audit report. When prima facie adjustment can be made u/s 43B of IT Act on considering information in other columns of audit report, then adjustment u/s 36(1)(va) can also be made. This fulfills the condition of permissible adjustment.
7.4 It is seen that this issue has been decided in various latest decision delivered by income tax tribunals. Some of the decisions in which power of AO CPC to adjust the belated payment of PF and ESIC u/s 36(1)(va) of IT Act is upheld are as under:
1. Prudent Transport co. Ltd. & Anr vs. DCIT ITAT, Chandigarh 'B' bench-ITA No. 600 & 60/chd/2022 -18-19 & 20-21 dated 20.09.2023 37 NYPITJ 1380 (Chd.)
2. Cementile Industries & Ors vs ITO & Ors. (ITA No. 693/Pun/2022 dt.23.11.2022 [reported at (2022) 220 DTR (Pune)(Trib) 265: (2022) 220 TTJ (Pune) 801--Ed.]
3. Sree Gokulam Chit & finance vs DCIT ITA No. 765/CHNY/2022 dated 21.12.2022
4. Salasar Balaji Ship Breakers(P) Ltd. Vs. ACIT ITAT Mumbai 'E' Eench - ITA 1947/MUM/2021 dated 12.04.2023
5. ITAT Banglore ITAT in case of Nandi Hospitality Vs. DCIT ITAT Banglore, ITA No.294 to 296/Bang/2023 dated 01.06.2023 has also upheld that the adjustment u/s 36(1)(va) r.w.s. 2(24)(x) which made u/s 143(1)(a)(vi) while passing the intimation u/s 143(1)(a) of IT Act.
6. Further, the Hon'ble Madras High Court in the case of AA 520 Veerappampalayam Primary Agricultural Cooperative Credit Society Ltd. Vs. Deputy Commissioner of Income-tax reported in (2022) 138 taxmann.com 571 wherein held as under: _ In this case the assessee filed his return of income belatedly and return was processed under Section 143(1)(a) of the Act by observing that "in schedule Chapter VI-A, under 5 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 Part-C deduction in respect of certain incomes, in Sr. No. 2.1 deduction is claimed under Section 80P however return is not filed within due date". Against this observation the assessee filed writ petition before the Hon'ble Madras High Court and the writ petition has been dismissed by observing as under: --
"7. The scope of an 'intimation' under section 143(1)(a) of the Act, extends to the making of adjustments based upon errors apparent from the return of income and patent from the record, Thus to say that the scope of 'incorrect claim' should be circumscribed and restricted by the Explanation which employs the term 'entry' would, in my view, not be correct and the provision must be given full and unfettered play. The explanation cannot curtail or restrict the main thrust or scope of the provision and due weight age as well as meaning has to be attributed to the purposes of section 143(1)(a) of the Act.
7.5 Therefore the disallowance made by AO CPC falls in purview of permissible adjustment u/s 143(1)(a)(vi) of IT Act.
7.6 Various decisions of ITAT mentioned above para 7.4 pertains to A.Y. prior to AY 2021-2022. In all these decisions the adjustment of belated payment of PF and ESIC is upheld and the decisions are against the assessees. Therefore, it is clear that the amendment made by finance act 2021 is clarificatory in nature and is applicable to the Assessment years prior to AY 2021-22 being retrospective in nature.
7.7 This office has issued a notice to the appellant specifically drawing attention of the appellant towards decision of Hon'ble Supreme Court decision in case of Checkmate Services Pvt. Ltd. Vs CIT [2024143 taxmann.com 178 (SC) and some details were also called for. The appellant has furnished their reply on 23.11.2023 as above mentioned at para 5. However, now appellant has refrained from commenting on the applicability of decision of Hon'ble Supreme Court. Therefore this office has considered the submission made by the appellant with appeal memo and furnished earlier. Recently, the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. Vs CIT [2022]143 taxmann.com 178 (SC) has threadbare considered this issue and drawn a distinction between the parameters for allowing deduction of employer's share and employees' share in the relevant funds. It has been held that the contribution by the employees to the relevant funds is the employer's income u/s.2(24)(x), but the deduction for the same can be allowed only if such amount is deposited in the employee's account in the relevant fund before the date stipulated under the respective Acts. The hitherto view taken by some of the Hon'ble High Courts in allowing deduction even where the 6 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 amount was deposited in the employee's account before the time allowed u/s.139(1), ergo, got overturned, The net effect of this Apex Court judgment is that the deduction u/s.36(1)(va) can be allowed only if the employees' share in the relevant funds is deposited by the employer before the due date stipulated in respective Acts and further that the due date u/s.139(1) of the Act is alien for this purpose.
There is no quarrel that the enunciation of law by the Hon'ble Supreme Court is always declaratory having the effect and application ab initio, being, the date of insertion of the provision, unless a judgment is categorically made prospectively applicable.
Under article 141 of constitution of India the Law laid down by Hon'ble Supreme Court is binding on all of us and becomes law of land. Considering above conceptual facts and decision of Hon'ble Supreme Court in case of "Checkmate Services Pvt. Ltd. Vs CIT [20221143 taxmann.com 178 (SC)"
grounds no 1 & 2 of the appellant are dismissed. Addition of Rs.28,21,065/- made by AO CPC is confirmed.
7.8. Ground no. 3: This ground pertains to addition of Rs.35,753/- being donation expense. Appellant has submitted P & L account, Audit Report and ITR. It is seen that the donation amount of Rs.35,753/- was already debited to P & L account and reported in clause 21(a)(2) as expenditure of personal nature. Since the said amount was already added back in computation of income, no need to addition the amount of Rs.35,753/- to avoid making double addition. The AO is directed to delete the said amount of Rs.35,753/-. Therefore, the ground no. 3 is allowed.
7.9. Ground no. 4: This ground is general in nature and no need to adjudicate.
8. In the result, the appeal of the appellant is Partly Allowed."
4. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us.
5. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material 7 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 available on record as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions.
6. Shri Sakshi Gopal Agrawal, Ld. Authorized Representative ( for short 'AR') for the assessee at the threshold submitted that the disallowance of assessee's claim for deduction of delayed deposit of employees share of contribution towards ESI/EPF u/s.36(1)(va) of the Act could not have been disallowed prior to the judgment of the Hon'ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT, Civil Appeal No.2833 of 2016, dated 12.20.2022. Elaborating on his contention, the Ld. AR submitted that as prior to the judgment of the Hon'ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT (supra), there were divergent views of the Hon'ble Courts as regards the assessee's entitlement for claiming deduction of the delayed deposit of employees share of contributions towards ESI/EPF, therefore, the same could not have been disallowed by the A.O u/s. 143(1)(a) of the Act.
7. Per contra, Dr. Priyanka Patel, Ld. Sr. Departmental Representative ( for short 'DR') relied on the orders of the lower authorities. It was submitted by the Ld. DR that the issue involved in the present appeal is squarely covered by the judgment of the Hon'ble High Court of 8 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 Chhattisgarh in the case of M/s. BPS Infrastructure Vs. ITO, Ward-1(3), Raipur, TAXC No. 87 of 2024, dated 12.04.2024.
8. We have thoughtfully considered the issue involved in the present appeal in the backdrop of the contentions advanced by the Ld. authorized representatives of both the parties.
9. Apropos the Ld. AR's claim that the A.O could not have disallowed the delayed deposit of employees share of contribution towards ESIC & EPF u/s. 36(1)(va) r.w.s. 2(24)(x) of the Act prior to the judgment of the Hon'ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT (supra), vide an intimation issued u/s. 143(1)(a) of the Act, we are unable to persuade ourselves to subscribe to the same. We find that the aforesaid issue, i.e. as to whether or not the delayed deposit of employees share of contribution towards ESIC & EPF could have been made by the A.O prior to the judgment of the Hon'ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT (supra) vide an intimation u/s. 143(1) of the Act, had been looked into by the Hon'ble High Court of Chhattisgarh in the case of M/s. BPS Infrastructure Vs. ITO, Ward-1(3), Raipur, TAXC No.87 of 2024, dated 12.04.2024, wherein the Hon'ble High Court on the said issue had observed as under:
"9. We have heard learned counsel for the parties, perused the pleadings and documents annexed with the appeal.9
Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024
10. From perusal of the orders of the learned ITAT and other authorities of the Department, it transpires that the assessee firm had e-filed its return of income for A.Y 2019-20 on 30.09.2010, declaring an income of Rs.14,66,150/-. The A.O/CPC, Bengaluru vide intimation issued under Section 143(1) of the Act, dated 06.03.2020 disallowed the assessee's claim for deduction of delayed deposit of employees share of contribution towards ESI/PF of Rs.19,84,415/- under Section 36(1) (va) of the Act and determined its income at Rs. 34,50,570/-. The assessee carried the matter in appeal before the CIT(A) but without success. Observing, that the disallowance of the assessee's claim for deduction of delayed deposit of employees share of contribution towards ESI/PF was rightly made by the A.O under Section 36(1) (va) of the Act, the CIT(A) approved the adjustment made by the DCIT, CPC, Bengaluru under Section 143(1) of the Act. Being aggrieved with the order of the CIT (A), the assessee took up the matter in an appeal before the learned ITAT wherein the submission of the assessee has been mentioned in para 5 of the order the ITAT which is as under:
"5. Shri Ravi Agrawal Ld. Authorized Representative (for short 'AR') for the assessee at the threshold of hearing of the appeal submitted that a delay of 690 days was involved in filing of the present appeal. Elaborating on the reasons leading to the aforesaid delay, It was submitted by the Ld. AR that the same had occasioned for the reason that the accountant of the assessee firm. viz. Shri Amitabh Paul had failed to bring to the notice of the partners of the assessee firm the order of the CIT (Appeals), dated 20.09.2021. The Ld. AR submitted that Shri Bhuvneshwar Prasad Sahu, partner of the assessee firm received the aforesaid order from his accountant only as on 08.10.2023. The Ld. AR submitted that Shri Amitabh Paul, accountant had admitted that though the order of the CIT(Appeals) was received by him way back but it had skipped from his mind to bring the same to the notice of the partners of the assessee firm. Carrying this contention further, the Ld. AR submitted that it was only when Shri Bhuwaneshwar Prasad Sahu (supra) had further brought the aforesaid order of the CIT (Appeals) on 29.09.2021, to the notice of his chartered account, viz. Shri Ajay Agrawal that he was informed that the appeal of the assessee firm had been dismissed by the CIT(Appeals) Raipur. The Ld. AR further submitted that as the order of the CIT(Appeals) was dropped in the email account, viz., "[email protected]" i.e. email account that was generated by his accountant Shri Amitabh Paul and the partners of the assessee firm had no access to the same, thus, 10 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 it was for the said bonafide reason that they had remained unaware about the order passed by the CIT/Appeals) dated 29.09.2021....."
11. The reason that the delay in filing of the present appeal can by no means be held to be justified for the reason that partners of the assessee firm had remained unaware about the order passed by the CIT (A) dated 29.09.2021 which was dropped in the e-mail account of his accountant, viz. Shri Amitabh Paul. As the reason given by the assessee firm regarding the inordinate delay involved in filing of the present appeal does not inspire any confidence, and in fact reveals a lackadaisical conduct of the partners of the assessee firm, therefore, the same cannot be summarily accepted on the very face of it. Considering the callous and lackadaisical conduct of the partners of the assessee firm who ought to have remained vigilant about their income tax matter was held by the ITAT.
12. As has been rightly relied on by the learned ITAT that in the case of State of West Bengal v. Administrator, Howrah reported in 1972 AIR SC 749, the Hon'ble Apex Court had held that the expression "sufficient cause should receive a liberal construction so as to advance substantial justice, particularly when there is no motive behind the delay The expression "sufficient cause will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as the appellant/ assessee in the present case is acting in defiance of law, therefore there can be no reason to allow its application and condone the substantial delay of 690 days involved in preferring of the captioned appeal. Further, the Hon'ble Supreme Court in Ramlal, Motilal and Chotelal v. Rewa Coalfields Ltd. reported in AIR (1962) 361 (SC) that seeker of justice must come with clean hands, therefore, now when in the present appeal the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the delay involved in preferring of the captioned appeal, the ITAT declined to condone the delay of 690 days, without adverting to the merits of the case and hence dismissed the captioned appeal of the assessee as barred by limitation.
13. As far as the issue involved pertaining to claiming of deduction under section 36 (1) (va) of the IT Act 1961 on delayed payment of employees share of contribution towards ESI/PF of Rs. 19,84,415, in the instant case is concerned is no more res integra. The Hon'ble Supreme Court has decided the legal issue on merits in the matter of Checkmate Services P. 11 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 Ltd. v. Commissioner of Income Tax-1, {Civil Appeal No. 2833 of 2016, decided on 12.10.2022}, wherein at paragraphs 51 to 54, it was observed as under:-
"51. The analysis of the various judgments cited on behalf of the assessee i.e., Commissioner of Income-Tax v. Aimil Ltd. [2010] 321 ITR 508 (Delhi High Court); Commissioner of Income-Tax and another v. Sabari Enterprises [2008] 298 ITR 141 (Karnataka High Court).; Commissioner of Income Tax v. Pamwi Tissues Ltd. [2009] 313 ITR 137 (Bombay High Court).; Commissioner of Income-Tax, Udaipur v. Udaipur Dugdh Utpadak Sahakari Sandh Ltd. [2013] 35 taxmann.com 616 (Rajasthan High Court) and Nipso Polyfabriks (supra) would reveal that in all these cases, the High Courts principally relied upon omission of second proviso to Section 43B (b). No doubt, many of these decisions also dealt with Section 36(va) with its explanation. However, the primary consideration in all the judgments, cited by the assessee, was that they adopted the approach indicated in the ruling in Alom Extrusions. As noticed previously, Alom Extrutions did not consider the fact of the introduction of Section 2(24)(x) or in fact the other provisions of the Act.
52. When Parliament introduced Section 43B, what was on the statute book, was only employer's contribution (Section 34(1)(iv)). At that point in time, there was no question of employee's contribution being considered as part of the employer's earning. On the application of the original principles of law it could have been treated only as receipts not amounting to income. When Parliament introduced the amendments in 1988-89, inserting Section 36(1)(va) and simultaneously inserting the second proviso of Section 43B, its intention was not to treat the disparate nature of the amounts, similarly. As discussed previously, the memorandum introducing the Finance Bill clearly stated that the provisions - especially second proviso to Section 43B - was introduced to ensure timely payments were made by the employer to the concerned fund (EPF, ESI, etc.) and avoid the mischief of employers retaining amounts for long periods. That Parliament intended to retain the separate character of these two amounts, is evident from the use of different language. Section 2(24)(x) too, deems amount received from the employees (whether the amount is received from the employee or by way of deduction authorized by the statute) as income - it is the character of the amount that is important, i.e., not income earned. Thus, amounts retained by the employer from out of the employee's income by way of deduction etc. were treated as income in the hands of the employer. The significance of this provision is that 12 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 on the one hand it brought into the fold of "income" amounts that were receipts or deductions from employees income; at the time, payment within the prescribed time - by way of contribution of the employees' share to their credit with the relevant fund is to be treated as deduction (Section 36(1)(va)). The other important feature is that this distinction between the employers' contribution (Section 36(1)(iv)) and employees' contribution required to be deposited by the employer (Section 36(1)(va)) was maintained - and continues to be maintained. On the other hand, Section 43B covers all deductions that are permissible as expenditures, or out-goings forming part of the assessees' liability. These include liabilities such as tax liability, cess duties etc. or interest liability having regard to the terms of the contract. Thus, timely payment of these alone entitle an assessee to the benefit of deduction from the total income. The essential objective of Section 43B is to ensure that if assessees are following the mercantile method of accounting, nevertheless, the deduction of such liabilities, based only on book entries, would not be given. To pass muster, actual payments were a necessary pre-condition for allowing the expenditure.
53. The distinction between an employer's contribution which is its primary liability under law - in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers' income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts - the employer's liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees' income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under Section 43B.
54. In the opinion of this Court, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the employer's obligation to deposit the amounts retained by it or deducted by it from the employee's income, unless the condition that it is deposited on or before the due date, is correct and justified. The non- obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely 13 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees' contributions- which are deducted from their income. They are not part of the assessee employer's income, nor are they heads of deduction per se in the form of statutory pay out. They are others' income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, and deemed an income, is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date. If such interpretation were to be adopted, the non-obstante clause under Section 43B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee's contribution on or before the due date as a condition for deduction."
14. Looking to the facts and circumstances of the case and law laid down by the Hon'ble Supreme Court in Checkmates Services (supra), the present appeal filed by the appellant is not only devoid of merits but also barred by limitation as provided under Section 253 of the Act. The learned ITAT has rightly dismissed the appeal of the assessee. We, therefore, are not persuaded to differ with the view taken by the ITAT and the reason assigned thereof.
15. Resultantly, the present appeal is dismissed as devoid of any merit and no substantial question of law arises in this appeal for consideration by this Court."
(emphasis supplied by us) Accordingly, in the backdrop of the judgment of the Hon'ble Jurisdictional Court in the case of M/s. BPS Infrastructure Vs. ITO, 14 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 Ward-1(3), Raipur (supra), we are unable to concur with the Ld. AR that the A.O prior to the judgment of the Hon'ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT (supra) could not have disallowed the delayed deposit of employees share of contribution towards ESIC & EPF u/s. 36(1)(va) r.w.s. 2(24)(x) of the Act, vide an intimation issued u/s. 143(1)(a) of the Act. We, thus, in terms of our aforesaid deliberations find no infirmity in the view taken by the CIT(Appeals) and, thus, uphold the same and sustain the disallowance of Rs.28,21,065/- made by the A.O u/s.36(1)(va) r.w. Sec.2(24)(x) of the Act. Thus, the Ground of appeals No. 1 to 4 raised by the assessee are dismissed in terms of our aforesaid observations.
10. Ground of appeal No.5 being general in nature is dismissed as not pressed.
11. In the result, appeal of the assessee is dismissed in terms of our aforesaid observations.
Order pronounced in open court on 26th day of September, 2024.
Sd/- Sd/-
ARUN KHODPIA RAVISH SOOD
(ACCOUNTANT MEMBER) (JUDICIAL MEMBER)
रायपुर/ RAIPUR ; दनांक / Dated : 26th September, 2024. ***SB, Sr. PS. 15 Shri Raj Kumar Bothra Vs. DCIT, Circle-2(1), Raipur ITA No. 377/RPR/2024 आदे श क त ल प अ े षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. The CIT(Appeals)-1, Raipur (C.G.)
4. The Pr. CIT, Raipur-1 (C.G)
5. वभागीय त न ध, आयकर अपील य अ धकरण, रायपुर बच, रायपुर / DR, ITAT, Raipur Bench, Raipur.
6. गाड फ़ाइल / Guard File.
आदे शानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपील य अ धकरण, रायपरु / ITAT, Raipur.