TMI Blog2018 (6) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... -2-2018 - Shri Vijay Pal Rao, JM Shri Bhagchand, AM Assessee by : Shri P.C. Parwal (C.A.) Revenue by : Shri L.R. Meena (CIT) ORDER Per: Vijay Pal Rao, J.M. These appeals by the Revenue are directed against two separate orders of CIT (A), Bikaner both dated 29.08.2017 for the assessment years 2002-03 2003-04 respectively. The Revenue has raised the common grounds in these appeals as under:- (i) Whether on the facts in the circumstances of the case and in law the ld. CIT(A) was justified in deleting the addition of ₹ 5,28,47,010/- made by the AO for depositing the employees contribution to PF ESI beyond the prescribed time limit provided in respective Act. (ii) Whether on the facts in the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid after the due date under the respective Acts but before filing of return of income U/s 139(1), cannot be disallowed U/s 43B or U/s 36(1 )(va) of the Act. During the course of appellate proceedings, the appellant submitted that ESI PF were deposited with in the Financial year and hence deduction could not be denied in view of decisions of various courts, ratio of which have held that payment of ESI and PF before the due date of filing of return of income is an allowable deduction. On overall appreciation of the facts, I tend to agree with the appellant s claim. The Hon'ble Supreme Court in case of CIT vs. Alom Extrusions Ltd. reported in 319 ITR 306 held that omission of second proviso to sec 43B and the amendment of first provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all. The case is to be governed with the application of the first proviso. If the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provision are made in the Provident Fund Act as well as the ESI Act. Therefore, the Acts permit the employer to make the deposit with some delays , subject to the aforesaid consequences. Insofar as the I T Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed. - CIT vs. Vinay Cement Ltd. (2007) 213 CTR (SC) 268, CIT vs. Dharmendra Sharma (2007) 213 CTR (del) 609 : (2008) 297 ITR 320 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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