TMI Blog2012 (9) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... huja:- This appeal by the Revenue filed on 29.2.2012 against an order dated 5.12.2011 of the ld. CIT (Appeals)-III, New Delhi, raises the following grounds:- 1. On the facts and in the circumstances of the case, the ld.CIT(A) has erred in law and on facts in deleting the addition of ₹ 33,111,56/-made by the Assessing Officer on account of late payment of employees contribution of ESIC PF. 2. The order of the CIT(A)is erroneous and is not tenable on facts and in law. 3. The appellant craves leave to add, to alter, or amend any/all of the grounds of the appeal before or during the course of the hearing of the appeal. 2. Facts, in brief, as relevant orders are that e-return declaring income of ₹ 1,50,37,034/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del.)and ALIMIL Ltd. others(supra). 5. We have heard both the parties and gone through the facts of the case as also the aforesaid decisions. As regards employer s and employees contribution towards PF , Hon ble Delhi High Court in the case of CIT v. P.M. Electronics Ltd., 220 CTR 635 (Delhi) while relying upon the decision of Hon ble Apex Court in the case of CIT Vs. Vinay Cement Ltd.,213 CTR (SC) 268 , concurred with the view taken by the Hon ble Madras High Court in Nexus Computer (P) Ltd.,219 CTR(Mad) 54 that employer/employees contribution towards provident fund payments made after the due date prescribed under the Employees Provident Fund Act and Rules made thereunder and before the due date for furnishing the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the employer of the employees contribution belatedly and contribution towards ESI PF under the relevant enactments can not be treated as income of the assessee u/s 36(1)(va) read with sec. 2(24)(x) in view of provisions of sec. 43B of the Act. 5.3 Hon ble Delhi High Court in another decision dated 23.12.2009 in CIT Vs. AIMIL Ltd.(Delhi)in ITA no. 1063/2008 now reported in 321 ITR 508 observed that sec. 2(24)(x) provides that amounts received by an assessee from employees towards PF contributions etc. shall be income . S. 36 (1) (va) provides that if such sums are contributed to the employees account in the relevant fund on or before the due date specified in the PF legislation, the assessee shall be entitled to a deduction. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs as well. As the deletion of the 2nd Proviso is retrospective, the case has to be governed by the first Proviso. Dharmendra Sharma 297 ITR 320 (Del) P.M. Electronics 313 ITR 161 (Delhi) followed; (iii) 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 provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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