TMI Blog2015 (6) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 is no proof of making such payment but disallowance is made only on the 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 - Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of late deposit of ESI. 4. The brief facts of the case are that the assessee filed return 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Amount Due date of deposit Date of deposit Apr-01 28,057 21.05.01 24.05.01 Aug-01 27,773 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The due date for the depositing the employee contribution towards ESI is 16th of the succeeding 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(A)-III, who vide his order dated 08.04.2013 has partly allowed the appeal of the assessee. 10. Now the Revenue is in appeal before us. 11. We have hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIT Vs. Vinay Cement Ltd. which was a special leave petition filed by the department against the High Court Order of 26th June, 2006 in ITA No. 2/05 and ITA No. 56/03 and ITA No. 80/03 of the High Court of Guwahati, Assam and its order dated 7th March, 2007. The observations of their Lordships on the issue are as under: In the present case we are concerned with the law as it stood prior to the amendment of Sec. 43B. In the circumstances the assessee was entitled to claim the benefit in See 43B for that period particularly in view of the fact that he has contributed to provident fund before filing of the return. The special leave petition is dismissed. 11. The ld AR relied on the decision of the Hon ble Delhi High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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