TMI Blog2014 (9) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue, therefore, we are of the considered opinion that no disallowance on account of such delayed payment is called for. We find no infirmity in the order of the CIT(A) deleting the disallowance made by the Assessing Officer on account of delayed payment of employees contribution to PF ESI. We accordingly uphold the same. The grounds raised by the Revenue are accordingly dismissed. - ITA No. 1769/PN/2013 - - - Dated:- 10-9-2014 - Shri Shailendra Kumar Yadav, Judicial Member and Shri R.K. Panda, Accountant Member Assessee by : Shri M.K. Kulkarni Revenue by : Shri Rajesh Damor ORDER PER R.K. PANDA, AM : This appeal filed by the Revenue is directed against the order dated 14-06-2013 of the CIT(A)-V, Pune relating to Assessment Year 2010-11. 2. Facts of the case, in brief, are that the assessee is an individual and is the proprietor of M/s. Shubham Enterprises which is engaged in the business of labour contractor and supplier. He filed his return of income on 13-10-2010 declaring total income of Rs.27,06,220/-. During the course of assessment proceedings the Assessing Officer noted from clause 16(b) of Form No. 3CD that the assessee has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion? 5. The appellant craves leave to add, amend or alter any of the above grounds of appeal. 4. The Ld. Departmental Representative filed a copy of the decision of the Hon ble Gujarat High Court in the case of CIT Vs. Gujarat State Road Transport Corporation reported in 265 CTR 64 (Guj.) and submitted that the Hon ble Gujarat High Court in the said decision has held that where the employer has not credited the sum received by it as employees contribution to employees account in relevant fund on or before due date as prescribed in Explanation to Section 36(1)(va), the assessee shall not be entitled to deduction of such amount though he deposits the said sum before the due date prescribed u/s.43B, i.e. prior to filing of return u/s.139(1) of the I.T. Act. He accordingly submitted that the order of the CIT(A) be reversed and that of the Assessing Officer be restored. 5. The Ld. Counsel for the assessee on the other hand submitted that the issue stands decided in favour of the assessee by the decision of the Tribunal in assessee s own case for A.Y. 2006-07 as well as the decision of the jurisdictional High Court in the case of CIT Vs. Hindustan Organics Chemicals Ltd. rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proviso came to be inserted which read as under: ''Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid during the previous year on or before the due date as defined in the Explanation below clause (va) of sub-section (1) of section 36. Thereafter, the said second proviso was further amended, vide the Finance Act, 1989, with effect from April 1, 1989, which read as under : Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid in cash or by issue of a cheque or draft or by any other mode on or before the due date as defined in the Explanation below clause (va) of sub-section (1) of section 36, and where such payment has been made otherwise than in cash, the sum has been realised within fifteen days from the due date . On a plain reading of the above provisos, it became ex facie clear that the assessees-employers were entitled to deductions only if the contributions to any fund for the welfare of the employees stood credited on or before the due date given in the relevant Act. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o understand how this deduction could have been disallowed to the assessee. Admittedly, the assessment year in question is 2006-07. The second proviso to section 43B quoted above was deleted with effect from April 1, 2004, and simultaneously the first proviso was also amended bringing about a uniformity in (Reductions claimed towards tax, duty, cess and fee on the one hand, and contribution to the employees' provident fund, superannuation fund and other welfare funds on the other. These deductions being claimed in the return of income filed for the assessment year 2006-07, the amendments to section 43B which came into force with effect from April 1, 2004, would have clearly applied to the assessee's case. In this view of the matter also, we find that the Income-tax Appellate Tribunal was fully justified in deleting the addition of Rs. 1,82,77,138 on account of delayed payment of provident fund of employees' contribution. As far as the second question is concerned, we find that the Commissioner of Income-tax (Appeals) as well as the Income-tax Appellate Tribunal merely followed the decisions in the case of this very assessee in the preceding years in deleting the disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
