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2015 (6) TMI 489 - ITAT DELHI

2015 (6) TMI 489 - ITAT DELHI - TMI - Late deposit of employee's contribution towards provident fund - disallowance of Claim u/s 43B - Held that:- In the assessment order AO has categorically stated the amount due for which month in respect of EPF and ESI deposits and has stated the due dates for these deposits to have been deposited and on which date actually these deposits were made by the assessee. The dates of deposits are mentioned between 05th July 2001 to 26th April 2002.

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ground that these payments have been made beyond the due dates of making these payments as stipulated under the respective statute. Thus, it was not an issue that the payments were not made by the assessee on the dates which have been stated to be the dates of deposits in the assessment order. In such a scenario, according law clarified by Hon'ble Supreme Court in the case of CIT Vs Vinay Cement Ltd,[2007 (3) TMI 346 - Supreme Court of India ] that no disallowance could be made if the payments .....

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ue has raised the following grounds in its Appeal:- "10. On the facts and in the circumstances of the case, the CIT(A) has erred in deleting the addition of ₹ 32,29,938/ - made by the Assessing Officer on account of late deposit of employee's contribution towards provident fund in view of the provisions of section 2(24)(x) read with section 36(1)(va) of the Income tax Act, 1961. 11. On the facts and in the circumstance of the case, the CIT(A) has erred in deleting the addition of .....

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urn at loss of ₹ 5,72,93,915/- and the AO assessed the assessee at a loss of ₹ 5,39,64,553/-. This reduction of loss was on account of following additions/ disallowance:- S. No. Particulars Amount (in Rs.) 1. Delayed payment of Contribution to Provident Fund 32,29,938 2. Delayed payment of ESI 84,076 3. Penalties on delayed payments 15,348 Total 33,29,362 5. As per the AO the payment of provident fund and ESI was not within the specified dates. The AO observed that the due date of pa .....

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g months:- Month Amount Due Date for deposit Date of Deposit May 298922 20.06.01 05.07.01 June-01 344557 20.07.01 12.09.01 July-01 342538 20.08.01 17.09.01 August-0l 320910 20.09.01 01.01.02 Sep-1 310209 20.10.01 28.01.02 Oct-01 327060 20.11.01 19.02.02 Nov-01 339740 20.12.01 19.02.01 Dec-01 340513 20.01.02 19.02.02 Feb-02 307391 20.03.02 26.04.02 Mar-02 298098 20.04.02 Not paid 32,29,938 6. And the AO observed that assessee had made later deposit of employee s contribution towards ESI Month Amo .....

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posting the employees contribution to provident fund is 15th of the succeeding month. Even if the grace period of 5 days are considered as the assessee has contested in the test audit report, even then, in the above noted instances the assessee has failed to deposit the provident fund within the stipulated period. In view of these facts, the amount of ₹ 32,29,938/- is taken as income of assessee u/s 2(24)(x) of the Act and this amount is not allowed as deduction u/s 36(1 )(V)(a) of Act. Ad .....

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month. Even if the grace period of five days is considered, the assessee has failed to deposit this amount within the due date. In view of these facts, the amount of ₹ 84,076/- is taken as the income of the assessee u/s 2(24)(x) of the Income Tax Act, 1961 and this amount is not allowed as deduction u/s 36( 1 )(V)(a) of Income Tax Act 1961. Addition of ₹ 84,076/- is accordingly made." 9. Against the aforesaid order of the Assessing, officer, assessee appealed before the Ld. CIT .....

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deposits are mentioned between 05th July 2001 to 26th April 2002. We find that the latest payment is made on 26th April 2002 and assessee being a limited company had filed its return on 20th October, 2002, so the assesse had deposited the amount before the due date of filing of the return. Thus, it is clear beyond doubt that all the payments which have been disallowed were made much earlier to the due date of filing of the return. The disallowance is not made by the AO on the ground that there i .....

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