Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2015 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (11) TMI 188 - GUJARAT HIGH COURTDisallowance u/s.43B - employer and employees contribution to P.F. And E.S.I. made beyond the due date - ITAT deleted the addition - Held that:- Insofar as the employer's contribution to PF and ESI is concerned, the Supreme Court in the case of Commissioner of Income Tax, Kolkata-III v. Alom Extrusions Limited (2009 (11) TMI 27 - SUPREME COURT) has held that the proviso to section 43B of the Act which came to be introduced with effect from 1.4.2004 is retrospective in operation. The proviso to section 43B provides 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 and the evidence of such payment is furnished by the assessee along with such return. In the present case, the assessee having actually paid the amount of employer's contribution before the due date for furnishing the return of income, the Tribunal was justified in deleting the disallowance made by the assessing officer under section 43B of the Act. Insofar as the employees' contribution is concerned, this court in the case of Commissioner of Income Tax II v. Gujarat State Road Transport (2014 (1) TMI 502 - GUJARAT HIGH COURT) has held that considering section 36 (1) (va) of the Act read with sub-clause (x) of clause (24) of section (2), with respect to the sum received by the assessee from any of his employees' to which provisions of sub-clause (x) of clause (24) of section (2) apply, the assessee shall be entitled to deduction in computing the income referred to in section 28 with respect to such sum credited by the assessee to the employees' account in the relevant fund or funds on or before the "due date" mentioned in explanation to section 36 (1) (va) of the Act. The court held that the Tribunal, therefore, erred in deleting disallowances being employees' contribution to PF account/ ESI account made by the Assessing Officer as such sums were not credited by the respective assessee to the employees' accounts in the relevant fund or funds on or before the due date as per explanation to section 36 (1) (va) of the Act, that is, the due date by which the concerned assessee was required as an employer to credit the employees' contribution to the employees' account in the provident fund under the Provident Funds Act and/or to ESI fund under the ESI Act. Under the circumstances, the assessee was not entitled to deduction under section 43B for employees' contribution - Decided partly in favour of assessee
|