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2022 (5) TMI 1565 - AT - Income TaxDelayed Employees contribution to Provident Fund and ESI - due date determination - amounts were not remitted within the due date prescribed u/s. 36(1)(va) but were remitted before the due date of filing of income tax returns u/s. 139(1) - intimation u/s 143(1) - HELD THAT:- It is not in dispute that assessee had remitted the employees’ contribution of PF & ESI with much before the due date of filing of return u/s. 139(1) of the Act, though the same has been remitted belatedly beyond the due dates specified under the respective PF & ESI Acts. We find that this issue is no longer res integra in view of the recent decision in the case of Kalpesh Synthetics Pvt. Ltd[2022 (5) TMI 461 - ITAT MUMBAI] “For the purposes of this clause, ‘due date’ means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued thereunder or under any standing order, award, contract of service or otherwise”, one cannot find fault in what has been reported in the tax audit report. It is not even an expression of opinion about the allowability of deduction or otherwise; it is just a factual report about the fact of payments and the fact of the due date as per the Explanation to Section 36(1)(va). This due date, however, has not been found to be decisive in the light of the law laid down by Hon'ble Courts above, and it cannot, therefore, be said that the reporting of payment beyond this due date in the tax audit report constituted “disallowance of expenditure indicated in the audit report but not taking into account in the computation of total income in the return” as is sine qua non for disallowance of Section 143(1)(a)(iv). While preparing the tax audit report, the auditor is expected to report the information as per the provisions of the Act, and the tax auditor has done that, but that information ceases to be relevant because, in terms of the law laid down by Hon’ble Courts, which binds all of us as much as the enacted legislation does, the said disallowance does not come into play when the payment is made well before the due date of filing the income tax return under section 139(1). Viewed thus also, the impugned adjustment is vitiated in law, and we must delete the same for this short reason as well. The impugned adjustment in the course of processing of return under section 143(1) is vitiated in law, and we delete the same. We find that the law prevailing prior to A.Y.2021-22 would rule the field and the case laws rendered by various High Courts would rule the field. Prior to the amendment, the Hon’ble Jurisdictional High Court in the case of CIT vs. Ghatge Patil Transport Ltd. [2014 (10) TMI 402 - BOMBAY HIGH COURT] had held that employees contribution to PF & ESI if remitted within the due date prescribed u/s. 139(1) of the Act for filing the income tax returns, would be allowed as deduction u/s. 43B of the Act. This issue has been decided in favour of the assessee after considering various decisions of Hon’ble Supreme Court, High Court and this Tribunal in the case of Force Point Software Consulting India P. Ltd., [2022 (6) TMI 95 - ITAT MUMBAI] Decided in favour of assessee.
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