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2022 (3) TMI 141 - ITAT KOLKATARevision u/s 263 by CIT - delay in the depositing of employees contribution towards provident fund and ESIC - HELD THAT:- Hon’ble Supreme Court in the case of Malabar Industries [2000 (2) TMI 10 - SUPREME COURT] held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the AO. Their Lordships held that every loss of revenue as a consequence of an order of AO cannot be treated as prejudicial to the interest of the revenue. When the AO adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the AO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law. Considering the uncontroverted factual details relating to deposit of employee contributions towards provident fund and ESIC before the due date of filing of return u/s 139(1) for the impugned year and the decision of Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd [2011 (9) TMI 30 - CALCUTTA HIGH COURT] fortifying the claim of the assessee, at the outset, we find that without going into the legal aspect of assessment order of the Ld. AO being erroneous in so far as it is prejudicial to the interest of the revenue, no prejudice is caused to the interest of the Revenue even if it is assumed that the order is erroneous. Presuming that the impugned order u/s 263 is upheld, the decision of Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd (supra) governs the assessment order arising from giving its effect on the treatment of allowability of claim for deposit of employee contributions towards provident fund and ESIC before the due date of filing of return u/s 139(1). We observe that where there is a delay in deposit of employees contribution to PF/ESIC as per the due date prescribed under the provisions of PF/ESIC Acts but the contribution is deposited before the due date of filing of return of income, no disallowance is called for u/s 36(1)(va) - Decided in favour of assessee.
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