TMI Blog2021 (9) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the return of income shows actual date of deposit in mm/dd/yy format which apparently has resulted in showing delay in deposit of employees contribution. Given that these details in terms of manual tax audit report and copy of challans reflecting payment of ESI/PF contribution have been submitted before us by way of additional evidence, we hereby admit the same in the interest of substantial justice and remand the matter to the file of the AO for the limited purposes of verifying the actual date of deposit of employees contribution towards ESI/PF as so claimed and where on verification, the AO found the same to be in order, the AO is directed to allow the necessary relief to the assessee by deleting the addition so made. - ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.2020. The CPC, Bangalore vide order u/s 143(1)/154 dt.17.08.2020 affirmed the adjustment so made U/s 36(1)(va) of the Act. 3. It was submitted that against the said intimation, the assessee filed appeal before Ld. CIT(A) stating that employees contribution to PF ESI has been paid before the due date of filling of return and therefore, in view of the decisions of Rajasthan High Court, the same cannot be added to income. The assessee further submitted that there is carried forward business loss of ₹ 50,06,195/- unabsorbed depreciation of ₹ 16,40,021/- and after allowing the set off of the same, there would not remain any income chargeable to tax. However, Ld. CIT(A) after relying on the decision of Hon ble Gujarat High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are made within due date. In this regard, it was submitted that the assessee has also an application for admission of additional evidence under Rule 29 and the same may be admitted and the addition so made be deleted. 5. It was further submitted that the assessee is having carried forward business loss of ₹ 50,06,195/- unabsorbed depreciation of ₹ 16,40,021/- and after allowing the set off of the same, there would not remained any income chargeable to tax. The Ld. CIT(A) without deciding this ground of assessee has confirmed the addition. 6. It was further submitted that even if there is delay in deposit of PF/ESI but if the same is paid before the due date of filing of return, ITAT, Jodhpur Bench in case of Mohan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the department and reliance on the decision of Jodhpur Benches of the Tribunal, it was submitted that the Hon'ble Gujarat High Court in CIT vs Gujarat State Road Transport Corporation (2014) 366 ITR 170 (Guj) and the Hon'ble Kerala High Court in CIT Vs Merchant (2015) 280 CTR 381 (Ker) have held that the scope of section 43B and section 36(1)(va) are different and thus, there is no question of reading both the provisions together to consider whether the assessee is entitled to deduction in respect of the sum belatedly paid towards such contribution, especially, when such sums received by the assessee (employer) from his employee. The explanation to section 36(1)(va) of the IT Act, 1961 clearly defines that the due date means t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no delay in deposit of employees s contribution towards ESI and PF and all the contributions have been duly deposited well before the due date as prescribed under the relevant statute. It has been submitted that the delay which has been reported is on account of certain technical glitches while uploading the data at the time of filing of the return of income. In this regard, our reference was drawn to manual tax audit report signed by the tax auditors as well as the particulars of the tax audit data which has been uploaded while filing the return of income and it was submitted that while manual tax audit report contains the date of deposit in dd/mm/yy format, the same data while uploading on the IT system of the department was captured in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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