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2023 (6) TMI 388 - AT - Income TaxDisallowance u/s 43B - non-payment of outstanding amount of ESI, PF, CGST and SGST not paid before the due date of filing of return of income - HELD THAT:- Section 43B cannot be invoked for the above stated payments and, therefore, we find merit in the contention of assessee for the inadvertent mistake committed by the tax auditor by reporting the detail of expenses payable as on March, 2017 on which provisions of Section 43B of the Act can be invoked have been wrongly reported in the column 26(i)(B)(b) in Form 3CB attached to the tax audit report, which is meant for those payments which fall under the provisions of Section 43B of the Act and are not deposited before the due date of filing of return. Considering the fact that on the alleged sum provisions of Section 43B of the Act are not applicable as they have been paid before the due date of filing u/s 139(1) of the Act, the said disallowance deserves to be deleted. Allow the ground raised by the assessee and thus delete the addition. Decided in favour of assessee. Disallowance employees’ contribution made towards PF - Though the assessee has claimed that wages were disbursed in the month of May and June, 2017 i.e., subsequent month for which wages were payable and thus claimed that due dates were subsequent to the months of payments and thus there is no delay - HELD THAT:- No merit in this contention of the assessee as the liability to pay PF /ESI fall due on the basis of month for which salary is payable. Now, considering the month for which wages are payable the due date for depositing the said sum was 15/06/2017 and 15/07/2017. However, the payment has been made on 18/05/2017 and 17/06/2017, which is after the due dates. Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] wherein it has been held that “deduction u/s 36(1)(va) in respect of delayed deposit of amount collected towards employees’ contribution to PF cannot be claimed when deposited within the due date of filing of return even when read with Section 43B of the Income-tax Act,1961.” Accordingly, the sum is not allowable u/s 36(1)(va) of the Act and is deemed to be income u/s 2(24)(x) of the Act. Accordingly, we dismiss this ground raised by the assessee.
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