TMI Blog2022 (2) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ctually made. It was further held that it was not the legislative intent and objective to treat belated payment of Employees Provident Fund Employees State Insurance Scheme as deemed income of the employer under section 2(24)(x) of the I.T. Act, 1961. From the aforesaid Judgments of the Hon ble High Courts, it is clear that the Hon ble Courts have not drawn any distinction between the employee s and employer s share qua PF ESI contributions, hence, first determination of the Ld. CIT(A) qua non-applicability of the provisions of Section 43B of the Act to the employee s share qua PF, ESI and Labour Welfare Fund is unsustainable. Applicability of the amendment to Sections 36(1)(va) and Section 43B - Various benches of the ITAT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961 (hereinafter referred to as the Act ). 2. The issue involved in the instant appeals relates to the deposit of employees contributions qua ESI, PF and Labour Welfare Fund after the due date as prescribed in the relevant Acts, however, before the due date of filing of return of income u/s.139(1) of the Act, resulting into following disallowances by the Assessing Officer. AY ESI Contribution PF Contribution Labour Welfare contributions 2018-19 ₹ 91,85,979/- 8,45,841/- 1,61,700/ AY ESI Contribution PF Contribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which includes Rajasthan State Beverages Ltd (2017) 84 Taxmann.com 185 (SC), CIT Vs. Alom Extrusion Ltd (2010) 1 SCC 489, CIT Vs. Vinay Cement Ltd 213 CTR 268 and by Hon ble Delhi High Court in the case of CIT Vs. AIMIL Ltd 321 ITR 508. 5.2 We observe that although the ld. CIT(A) has considered the judgments relied upon by the Assessee as observed in its order at para no. 5.3 to the effect however the case law quoted by the Appellant and some other Courts have applied the provision of Section 43B on employee contribution as well and held that if such payment(Employees contribution) is made before the due date of filling of Return of Income, no disallowance should be made u/s 36 of the Act , howeverdeclined the claim of the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to claim deduction of employee s share of ESI PF u/s.43B of the Act, if the same has been deposited prior to the filing of return of income u/s.139(1) of the Act. Jurisdictional High Court as well, in the case of CIT Vs. AIMIL Ltd (supra) affirmed the action of the ITAT in deleting the addition relating to employees contribution deposited before the due date of filing of return, in respect of Provident Fund and ESI made by the Assessing Officer under Section 36(1)(va) of the Income Tax Act, 1961. Again Jurisdictional High Court in the case of PCIT vs., Pro Interactive Service (India) Pvt. Ltd., vide ITA.No.983/2018 order dated 10.09.2018 while following the decision in the case of CIT Versus AIMIL Ltd., (supra), has held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5.-For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the Assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 applies. 5.7 Weobserve that various benches of the ITAT including Hyderabad Bench in the case of Value Momentum Software Services Pvt. Ltd. (ITA No.2197/Hyd/2017 decided on 19.05.2021), have taken into consideration the identical issue qua applicability of the amendment to Sections 36(1)(va) and Section 43B of the Act, by inserting Explanations by the Finance Act, 2021 and clearly held that the amendment shall be applicable from 1st April, 2021 onwards . I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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