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Smart Summary

Factual and Procedural Background

This appeal arises from an order of the Learned Commissioner of Income Tax (Appeals), NFAC, Delhi dated 19.08.2021 in respect of Assessment Year 2018-19 filed by India Files Manufacturing Co. (assessee) against the assessment processed by the ACIT, National E-Assessment Centre, Delhi. The sole substantive issue is the disallowance of employees' share of EPF/ESI amounting to Rs.1,32,862/- on the ground that the employees' contributions were not deposited within the time prescribed under the relevant welfare Acts.

Procedurally, the Registry received an adjournment application stating that the assessee's counsel was unavailable (abroad). The matter had been adjourned previously on requests by the assessee's counsel (from 01.03.2023 to 18.04.2023 and then to 01.06.2023). The Bench declined further adjournment because the issue was considered to be squarely covered by a recent decision of the Hon'ble Supreme Court, and proceeded to decide the matter on merits. The order was pronounced on 02.06.2023 by Shri Sanjay Garg, Judicial Member.

Legal Issues Presented

  1. Whether the employers' claim for deduction under Section 36(1)(va) for employees' share of EPF/ESI is allowable where the employees' contribution is deposited after the due date prescribed under the relevant welfare Acts (even if deposited before the due date for filing the return of income)?
  2. Whether an adjustment/disallowance for late deposit of employees' share can be made in an intimation processed under section 143(1)(a) of the Income Tax Act (including where the disallowance is indicated in the statutory audit report)?

Arguments of the Parties

Appellant's (Assessee's) Arguments

  • The assessee sought adjournments on grounds of unavailability of its counsel; substantive contentions were raised through prior submissions.
  • The assessee contended that the disallowance made by the CPC while processing the return under section 143(1) was not valid, including on the premise that the intimation under section 143(1) was issued before the Hon'ble Supreme Court decision relied upon by the Revenue.
  • The assessee argued that deduction should be allowable under section 43B if the employees' share was deposited before the due date for furnishing the return under section 139(1); i.e., that the due date under section 139(1) should be relevant for allowing the deduction.
  • It was argued that no separate deduction for the employees' contribution was claimed in the Profit & Loss account (contention: therefore no disallowance should arise).
  • The assessee's representative referred to section 5 of the Payment of Wages Act, 1936 to contend that the timing of payment of wages should affect the due date for deposit into the fund (arguing a later effective due date for deposit).

Respondent's (Revenue's) Arguments

  • The Revenue relied on the Hon'ble Supreme Court decision in Checkmate Services P. Ltd. & Ors. v. CIT & Ors. (2022) 448 ITR 518 (S.C.), which held that employees' contributions are allowable under section 36(1)(va) only if deposited in the employees' account in the relevant fund before the date stipulated under the respective welfare Acts; deposit before the return filing date under section 139(1) is not sufficient.
  • The Revenue pointed to coordinate-bench and other tribunal decisions (including Emson Tools Mfg. Corp. Ltd. v. DCIT and Cemetile Industries & Ors. v. ITO & Ors.) that applied the Supreme Court's ratio and upheld disallowances made under section 143(1)(a) where the audit report (point 20(b)) indicated late deposit (showing due date and actual date of payment).
  • The Revenue submitted that the audit report's specific columns (sum received from employees, due date, actual date of payment) provide a clear indication for disallowance under clause (iv) of section 143(1)(a) (i.e., disallowance of expenditure indicated in the audit report).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Checkmate Services P. Ltd. & Ors. v. CIT & Ors. (2022) 448 ITR 518 (S.C.) The Supreme Court held that employees' contribution to ESI/EPF is allowable under section 36(1)(va) only if deposited in the employee's account in the relevant fund before the date stipulated under the respective welfare Acts; deposit before the due date of filing the return under section 139(1) does not suffice. The Bench treated this decision as decisive and applied its ratio to hold that late deposit (after the date prescribed under the respective Acts) precludes deduction under section 36(1)(va), irrespective of deposit before the return filing due date.
Emson Tools Mfg. Corp. Ltd. v. DCIT, Ludhiana (ITA No.1/Chd/2022) (Coordinate Bench) Applied the Supreme Court's distinction between employer's and employees' share and held that deduction under section 36(1)(va) is allowable only if employees' share is deposited before the due date under the relevant Acts; noted that decisions to the contrary were overruled by the Supreme Court. The present Bench followed this coordinate-bench decision as supporting authority for sustaining the disallowance and for the proposition that the Supreme Court overruled earlier High Court views favorable to assessees.
Cemetile Industries & Ors. v. ITO & Ors. (ITA No.693/PUN/2022 dated 23-11-2022) (Pune Bench) Analysed section 43B and section 36(1)(va), interpreted clauses (ii) and (iv) of section 143(1)(a), and explained how an audit report (point 20(b)) indicating due date and actual date of deposit provides an apparent indication for disallowance under section 143(1)(a). The Court relied on this decision for detailed reasoning on why disallowance for late deposit can legitimately be made in intimation under section 143(1)(a) where the audit report clearly shows a delayed deposit.

Court's Reasoning and Analysis

The Bench's reasoning proceeded in the following sequence, strictly following the material and authorities cited in the opinion:

  1. Adjournment refused: The Bench declined a further adjournment because the legal issue was regarded as settled by the Supreme Court decision in Checkmate (supra), and therefore no useful purpose would be served by further delay.
  2. Application of Supreme Court precedent: The Bench took the Supreme Court's holding in Checkmate as determinative: employees' contribution is the employer's income under section 2(24)(x), but deduction under section 36(1)(va) is available only if the employees' share is deposited in the employees' account in the relevant fund before the date stipulated in the respective welfare Acts; the due date under section 139(1) is irrelevant for this purpose.
  3. Response to the assessee's reliance on section 43B: The Bench explained that earlier High Court views accepting deposit before section 139(1) as sufficient were overruled by Checkmate. The tribunal decisions cited (Emson, Cemetile) analyzed section 43B and distinguished the employer's and employees' share treatment, concluding that section 36(1)(va) has its own statutory requirement tied to the relevant welfare Acts' due dates.
  4. Analysing CPC processing under section 143(1)(a): The Bench examined whether the disallowance could be made in processing under section 143(1)(a), focusing on clauses (ii) and (iv) and Explanation (a) to section 143(1). It concluded that where the audit report (point 20(b)) specifically indicates the due date and the actual date of deposit (showing a delay), that constitutes an "indication" of disallowance within the meaning of clause (iv) — i.e., "disallowance of expenditure indicated in the audit report but not taken into account in computing the total income in the return."
  5. Meaning of "an incorrect claim apparent from any information in the return": The Bench considered Explanation (a) and concluded that none of its three illustrative clauses (inconsistency in entries, failure to furnish required information, or deduction exceeding statutory limits) applied directly to negate the processing adjustment; instead, the proper route in these facts was clause (iv) relating to audit report indication.
  6. Audit report (point 20(b)) significance: Because point 20(b) of the audit report contains columns for 'Sum received from employees', 'Due date for payment', 'The actual amount paid' and 'The actual date of payment', a specific showing there that the actual date is beyond the due date is a clear indication of non-compliance with section 36(1)(va) conditions, thereby justifying disallowance in processing under section 143(1)(a).
  7. Rejection of alternate contentions:
    • The Bench rejected the argument that the issue was merely an "increase in income" (a limb inserted in clause (iv) w.e.f. 01-04-2021) and therefore inapplicable; it held that clause (iv) covers two independent limbs—disallowance of expenditure and increase in income—and in the present facts the disallowance-of-expenditure limb is engaged.
    • The argument that no deduction was claimed in the Profit & Loss account was rejected: the Bench reasoned that salaries were claimed on a gross basis inclusive of the employees' share, so the employer effectively claimed deduction of the employees' share as part of gross salary; if that employees' share is disallowed under section 36(1)(va), the corresponding portion of the gross salary becomes non-deductible.
    • The contention linking the due date for deposit to the time of payment of wages (relying on section 5 of the Payment of Wages Act) was rejected because section 5 deals only with time of payment of wages and does not determine the statutory time-limit for deposit of employees' share into the funds; the relevant welfare Acts prescribe the deposit window (described in the order as within 15 days of the last month's salary, i.e., contribution for October should be deposited before 15th November).
  8. Conclusion of reasoning: On the combined application of the Supreme Court decision and the tribunal precedents (Emson, Cemetile), and on the statutory text and audit report indications, the Bench concluded that the Learned CIT(A) was justified in sustaining the adjustment made under section 143(1)(a) by way of disallowance of the employees' share for late deposit beyond the dates prescribed under the respective welfare Acts.

Holding and Implications

Holding: APPEAL DISMISSED. The Bench upheld the Learned CIT(A)'s decision sustaining the adjustment made under section 143(1)(a) by disallowing the employees' share of PF/ESI contributions where such contributions were deposited after the date prescribed under the respective welfare Acts.

Implications:

  • Direct effect on the parties: The assessee's appeal against the disallowance of Rs.1,32,862/- for late deposit of employees' share was dismissed; the disallowance stands upheld for Assessment Year 2018-19.
  • Legal consequence reflected in the order: The decision applies established Supreme Court precedent (Checkmate) and follows coordinate-bench tribunal decisions; the Bench did not purport to create new law but applied existing authoritative decisions to the facts of the case.
  • Broader implications: The order reinforces the proposition that deposit of employees' share after the statutory due date under the relevant welfare Acts disqualifies the employer from claiming deduction under section 36(1)(va), and that such disallowances may be sustained in processing under section 143(1)(a) when the statutory audit report clearly indicates the delayed deposit. The opinion does not state that it establishes a new precedent beyond applying the cited authorities.

    India Files Manufacturing Co, Una v. DCIT,CPC/ACIT,Circle, Palampur

    आयकर अपील य अ धकरण,चडीगढ़ यायपीठ "एस.एम.सी" , चडीगढ़

    IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH

    "S.M.C", CHANDIGARH ी संजय गग, यायक सद!य

    BEFORE: SHRI. SANJAY GARG, JUDICIAL MEMBER

    आयकर अपील स.ं/ ITA NO. 308/Chd/ 2021 नधारण वष / Assessment Year : 2018-19 India Files Manufacturing Co., Moza Gurplah Bathu,

    Haroli, Una (HP).

    बनाम

    The ACIT,

    National E-Assessment Centre, Delhi.

    थायी लेखा स.ं/PAN NO: ABDFI6808D अपीलाथ /Appellant यथ /Respondent नधारती क! ओर से/Assessee by : None ( Adjournment Application ) राज व क! ओर से/ Revenue by : Smt. Amanpreet Kaur, Sr. DR सनुवाई क! तार&ख/Date of Hearing : 01.06.2023

    उदघोषणा क! तार&ख/Date of Pronouncement :02.06.2023 आदेश/Order

    PER SANJAY GARG, JUDICIAL MEMBER :

    This is an appeal filed by the Assessee against the order of the Ld. CIT(A), NFAC, Delhi dated 19.08.2021 pertaining to Assessment Year 2018-19.

    2. The sole issue raised in this appeal is relating to the disallowance of employees' share of EPF/ESI amounting to Rs.1,32,862/- because of the non deposit of the same within the stipulated time period as prescribed under the respective welfare Acts.

    1

    Page 2 of 9

    3. An application for adjournment has been received by the Registry wherein it has been stated that the counsel of the assessee Shri S.K. Vatta is unavailable as he has gone abroad, therefore, the case may be adjourned. It is to be noted that earlier the case was fixed for 01.03.2023, however, an adjournment request alongwith written submissions/arguments was received from the counsel for the assessee and thereafter, the case was adjourned to 18.04.2023. Again the case was adjourned at the request of the counsel for the assessee to today i.e. 01.06.2023. Since the issue raised in this appeal is squarely covered by the decision of the Hon'ble Supreme Court and no useful purpose will be served in further adjourning the matter, therefore, I proceed to decide the matter on merits.

    3. I find that the issue involved in this appeal has been set at rest by the recent decision of the Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. & Ors. Vs. CIT & Ors (2022)

    448 ITR 518 (S.C), whereby, the Hon'ble Supreme Court has held that if the employees' contribution to ESI/EPF fund is deposited after the due date under the respective Welfare Acts, then the same is not allowable as deduction under Section 36(1)(va) of the Income Tax Act irrespective of the fact that the same was deposited before the due date of filing of the return of income. So far as the

    Page 3 of 9

    contentions raised by the assessee regarding the validity of the disallowance made by the CPC while processing the return u/s 143(1) of the Income Tax Act and that the intimation u/s 143(1) was passed much before the judgement of the Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. & Ors. Vs. CIT & Ors Vs. CIT & Ors. (supra) are concerned, I find that the said issues are squarely covered by the decision of the Coordinate Chandigarh Bench of this Tribunal in the case of 'Emson Tools Mfg. Corp. Ltd. Vs. DCIT, Ludhiana' (ITA No.1/Chd/2022), wherein it was held as under:

    "6. We have considered the rival submissions and perused the material available on the record. We find that the matter is squarely covered by the decision of Hon'ble Supreme Court in case of Checkmate Services P. Ltd. & Ors. Vs. CIT & Ors.(supra) wherein after taking into consideration the relevant provisions of the Act as well as the provisions of relevant welfare ESI/PF schemes, it was held that the contribution by the employees to the relevant funds is the employer's income under section 2(24)(x), but the deduction for the same can be allowed under section 36(1)(va) only if such sum is deposited in the employee's account in the relevant fund before the date stipulated under the respective Act and as rightly pointed out by the DR that the ratio laid down by the Hon'ble Karnataka High Court stand overruled by the decision of the Hon'ble Supreme Court and the same doesn't support the case of the assessee.

    6.1. Further, in the context of disallowance made by CPC while processing the return of income and specially in the context of 143(1)(a)(iv) as relevant in the instant case, we find that the matter is squarely covered by the decision of Coordinate Pune Bench in case of Cemetile Industries & Ors. Vs. ITO & Ors (in ITA No. 693/PUN/2022 dt. 23/11/2022) and the relevant findings read as under:

    5. Adverting to the facts of the case, it is seen that the assessee claimed the deduction for the employees' share for depositing the same in the relevant funds beyond the due date as given in Explanation 1 to section 36(1)(va) on the strength of section 43B. The latter section opens with a non-obstante clause and provides that a deduction otherwise allowable in respect of: `(b) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees' shall be

    Page 4 of 9

    allowed only in that previous year in which such sum is actually paid. The first proviso to section 43B states that: `nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return.' The main provision of section 43B, providing for the deduction only on actual payment basis, has been relaxed by the proviso so as to enable the deduction even if the payment is made before the due date of furnishing the return u/s 139(1) of the Act for that year. The claim of the assessee is that the deduction becomes available in the light of section 36(1)(va) read with section 43B on depositing the employees' share in the relevant funds before the due date u/s 139(1) of the Act. This position was earlier accepted by some of the Hon'ble High Courts holding that the deduction is allowed even if the assessee deposits the employees' share in the relevant funds before the date of filing of return u/s.139(1) of the Act. This was on the analogy of treating the employee's share as having the same character as that of the employer's share, becoming deductible u/s 36(1)(iv) read in the hue of section 43B(b). Recently, the Hon'ble Supreme Court in Checkmate Services P. Ltd. & Ors. VS. CIT & Ors. (2022) 448 ITR 518 (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 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.

    6. 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. The ld. AR candidly admitted that this judgment will equally apply to the disallowance u/s.36(1)(va) anent to all earlier years as well for the assessments completed u/s.143(3) of the Act. He, however, accentuated the fact that the instant batch of appeals involves the disallowance made u/s.143(1) of the Act. It was argued that no prima facie adjustment can be made in the Intimation issued u/s 143(1) of the Act unless a case is covered within the specific four corners of the provision. It was stressed that the action of the AO in making the extant disallowance does not fall in any of the clauses of section 143(1).

    Page 5 of 9

    7. We fully agree with the proposition bolstered by the ld. AR that adjustment to the total income or loss can be made only in the terms indicated specifically u/s.143(1) of the Act. Now, we proceed to examine if the case falls under any of the clauses. The rival parties are consensus ad idem that the case can be considered as falling either under clause (ii) or (iv) of section 143(1). For ready reference, we are extracting the relevant provision as under:

    '143. (1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in the following manner, namely:—

    (a) the total income or loss shall be computed after making the following adjustments, namely:—

    (ii) an incorrect claim, if such incorrect claim is apparent from any information in the return;

    (iv) disallowance of expenditure or increase in income indicated in the audit report but not taken into account in computing the total income in the return'

    8. Sub-section (1) of section 143 states that a return shall be processed to compute total income by making six types of `adjustments' as set out in sub-clauses (i) to (vi). As noted supra, we are concerned only with the examination of two sub-clauses, viz., (ii) and (iv). Sub-clause (ii) talks of 'an incorrect claim, if such incorrect claim is apparent from any information in the return". The expression "an incorrect claim apparent from any information in the return" has not been generally used in the provision. Rather, it has been specifically defined in Explanation (a) to section 143(1) as under:

    `Explanation.—For the purposes of this sub-section,—

    (a) "an incorrect claim apparent from any information in the return" shall mean a claim, on the basis of an entry, in the return,—

    (i) of an item, which is inconsistent with another entry of the same or some other item in such return; (ii) in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or

    (iii) in respect of a deduction, where such deduction exceeds specified statutory limit which may have been expressed as monetary amount or percentage or ratio or fraction;'

    9. Clause (i) of Explanation (a) refers to a situation in which there is a claim of income or expenditure at two places in the return of income and there is inconsistency in them. For example, if deduction is claimed under a specific section for a sum of Rs.100/- in the Profit and loss account accompanying the return, but in the computation of income, the amount has been taken as Rs.110/-, leading to inconsistency, requiring an adjustment. Clause (ii) of Explanation (a) covers a situation in which

    Page 6 of 9

    claim is made, say, for a deduction u/s.80IA for which audit report is required to be furnished, but such report has not been furnished along with the return. Clause (iii) contemplates a situation in which deduction exceeds specified statutory limit. For example, section 24(a) provides for a standard deduction for a sum equal to 30% of the annual value, but the assessee has claimed deduction at 40%. These situations warrant an adjustment. It is obvious that none of the three clauses of Explanation (a), defining an incorrect claim apparent from any information in the return, gets magnetized to the facts of the present case.

    10. Now we turn to clause (iv) of section 143(1)(a) which provides for `disallowance of expenditure or increase in income indicated in the audit report but not taken into account in computing the total income in the return'. The words "or increase in income" in the above provision were inserted by the Finance Act, 2021 w.e.f. 01-04-2021. As such, this part of the provision cannot be considered for application during the years under consideration, which are anterior to the amendment. We are left with ascertaining if the disallowance made u/s 36(1)(va) in the Intimation under section 143(1)(a) can be construed as a `disallowance of expenditure indicated in the audit report not taken into account in computing the total income in the return'. Point 20(b) of the audit report in Form 3CA has columns - Serial number; Nature of fund; Sum received from employees; Due date for payment; The actual amount paid; and The actual date of payment to the concerned authorities. A copy of audit report in one of the cases under consideration, namely, S.M. Auto Stamping Pvt. Ltd. (ITA No.521/PUN/2022) has been placed on record. Point 20(b) of the audit report gives the `Sum received from employees' at Rs.21,800/-. `Due date for payment' has been reported as 15-07-2017 and `The actual date of payment to the concerned authorities' has been given as 20-07-2017. Similar is the position regarding other items disallowed u/s.36(1)(va) having `The actual date of payment' after the `Due date for payment'. Thus, it is manifest that the audit report clearly points out that as against the due date of payment of the employees' share in the relevant fund on 15.7.2017 for deduction u/s 36(1)(va), the actual payment is delayed and deposited on 20.7.2017. The legislature, for the disallowance under sub-clause (iv) of section 143(1)(a), has used the expression `indicated in the audit report'. The word `indicated' is wider in amplitude than the word `reported', which envelopes both the direct and indirect reporting. Even if there is some indication of disallowance in the audit report, which is short of direct reporting of the disallowance, the case gets covered within the purview of the provision warranting the disallowance. However, the indication must be clear and not vague. If the indication in the audit report gives a clear picture of the violation of a provision, there can be no escape from disallowance. Turning to the facts of the case, it is clear from the mandate of section 36(1)(va) that the employees' share in the relevant funds must be deposited before the due date under the respective Acts. If the audit report mentions the due date of payment and also the actual date of payment with specific reference in column no. 20(b) having heading:

    `Details of contributions received from employees for various funds as referred to in section 36(1)(va)', it is an apparent indication of the disallowance of expenditure u/s 36(1)(va) in the audit report in a case

    Page 7 of 9

    where the actual date of payment is beyond the due date. Though the audit report clearly indicated that there was a delay in the deposit of the employees' share in the relevant funds, which was in contravention of the prescription of u/s.36(1)(va), the assessee chose not to offer the disallowance in computing the total income in the return, which rightly called for the disallowance in terms of section 143(1)(a) of the Act.

    11. The ld. AR vehemently argued that it was a case of "increase in income" which has been enshrined in clause (iv) of section 143(1)(a) w.e.f. 01-04-2021 and hence cannot be take note of for the year under consideration. In our considered opinion, the contention is ill-founded. We have noted above that clause (iv) of section 143(1)(a) talks of two different limbs, namely, `disallowance of expenditure' and `increase in income' by means of indication in the audit report. Both the limbs are independent of each other. The indication in the audit report for `Increase of income' should be qua some item of income and not increase of income because of the `disallowance of expenditure'. Every disallowance of expenditure leads to increase of income. If the contention of the ld. AR is taken to a logical conclusion, then the second expression `or increase in income' inserted by the Finance Act, 2021 would be rendered a redundant piece of legislation. It is trite interpretation has to be given to the statutory provisions in such a manner that no part of the Act is rendered nugatory. Distinction in the scope of the two aspects can be understood with the help of the present context only. We have noted that point no. 20(b) of the audit report, dealing with section 36(1)(va), has columns, inter alia, (i) `Sum received from employees'; (ii) `Due date for payment'; and (iii) `The actual date of payment to the concerned authorities'. The column (i) having details of the amounts received from employees indicates about the `increase in income' as per sub-clause (iv) of section 143(1)(a) if the assessee does not take this sum in computing total income. The columns (ii) and (iii) having details of due date for payment and the actual date of payment indicate about `disallowance of expenditure' if the assessee does not make suo motu disallowance in computing total income. Right now, there is no case of `increase in income' because the AO did not make adjustment for non-offering of income of the `Sums received from employees', but made the adjustment for `disallowance of expenditure' with the remarks that `Amounts debited to the profit and loss account, to the extent disallowance under section 36 due to non-fulfillment of conditions specified in relevant clauses'. Thus, it is evident that it is a case of `disallowance of expenditure' and not `increase of income'. Further, the entire challenge by the assessee throughout has been to the disallowance of expenditure made by the AO. It set up a case before the authorities below, including the ld. CIT(A), taking shelter of section 43B of the Act by arguing that the disallowance cannot be made because such payment was made before the due date u/s.139(1) of the Act. As such, the contention of adjustment u/s 143(1)(a)(iv) due to `increase in income' is jettisoned.

    12. Another argument point was put forth on behalf of the assessee that the assessee did not claim any deduction in the Profit and loss account of the amount under consideration and hence no disallowance should have been made. This argument is again bereft of force. The assessee

    Page 8 of 9

    claimed deduction for salary on gross basis, inclusive of the employees' share to the relevant funds. To put it simply, if gross salary is of Rs.100, out of which a sum of Rs.10 has been deducted as contribution to relevant fund, then the debit of Rs.100 in the Profit and loss account means deduction has been claimed for Rs.10 as well. Ex consequenti, if deduction of Rs.10 is not allowed u/s 36(1)(va) for late deposit of the amount before the due date under the respective Act, it would mean that the claim of Rs.10 included in Rs.100 is not allowed deduction.

    13. The ld. AR referred to section 5 of the Payment of Wages Act, 1936, to contend that deduction made from an employee's salary for the month of October should suffer disallowance only if it is not paid by 15th December. This argument was premised on the language of section 5, which says that the wages of every person employed upon or in any railway, factory or industrial or other establishment upon or in which less than one thousand persons are employed, shall be paid before expiry of the seventh day, after the last day of the wage-period in respect of which the wages are payable. It was contended that salary for the month of October, 2022 will be paid before the 7th of November, which will result into income of the employer only at the time of payment, making the due date of payment into relevant fund as on or before 15th December and not 15th November.

    14. There is no merit in the contention of linking the date of deposit of the employees' share in the relevant funds with the date of payment of wages. Section 5 of the Payment of Wages Act simply deals with the 'Time of payment of wages'. It does not stipulate any time limit for deposit of the employees share in the relevant funds. For that purpose, the relevant Acts give a window for depositing the contribution within 15 days of the last month's salary. Thus, contribution to the relevant fund towards the salary for the month of October-ending should be deposited before 15th November.

    15. In view of the foregoing discussion, we are satisfied that the ld. CIT(A) was justified in sustaining the adjustment u/s 143(1)(a) by means of disallowance made in these cases for late deposit of employees' share to the relevant funds beyond the date prescribed under the respective Acts."

    6.2. In light of aforesaid discussions and in the entirety of facts and circumstances of the case, and respectfully following the decisions referred supra, we are of the considered opinion that the ld. CIT(A) was justified in sustaining the adjustment u/s 143(1)(a) by means of disallowance made for late deposit of employees' share of PF/ESI contribution to the relevant funds beyond the date prescribed under the respective Acts."

    4. In light of aforesaid discussions and in the entirety of facts and circumstances of the case, and following the decision referred to supra, I am of the view that the ld. CIT(A) was justified in

    Page 9 of 9

    sustaining the adjustment u/s 143(1)(a) by means of disallowance made for late deposit of employees' share of PF/ESI contribution to the relevant funds beyond the date prescribed under the respective Acts.

    5. In the result, the appeal of the assessee is dismissed. Order pronounced in the open Court on 02.06.2023. Sd/-

    सजंय गग

    (SANJAY GARG)

    यायक सद!य / JUDICIAL MEMBER 'Poonam'

    आदेश क! त,ल-प अ.े-षत/ Copy of the order forwarded to :

    1. अपीलाथ / The Appellant

    2. यथ / The Respondent

    3. आयकर आयु/त/ CIT

    4. -वभागीय तन2ध, आयकर अपील&य आ2धकरण, च5डीगढ़/ DR, ITAT, CHANDIGARH

    5. गाड फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar

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