TMI Blog2018 (8) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... dent by : Shri Prasoon Kabra, Sr. D.R. ORDER Per Waseem Ahmed, Accountant Member The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax(Appeals)-7, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)-7/108/16-17 dated 06.11.2017 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) dated 07.12.2016 relevant to Assessment Year (AY) 2014-15. 2. The grounds of appeal raised by the assessee are as under:- 1.1 That on the facts and in the circumstances of the case and as per law, learned CIT (Appeals) erred in sustaining the disallowance, of ₹ 33,95,734/- under section 36(1)(va) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee failed to deposit the employee s contribution to PF/ESI within the due date as specified under the relevant Act, Rule or Notification issued under the respective Act. Therefore, the AO disallowed the same after having a reliance on the judgment of Hon ble Gujarat High Court, in the case of CIT vs. GSRTC reported in 41taxmann.com 100 and added to the total income of the assessee. 5. Aggrieved, assessee preferred an appeal to ld. CIT(A) who has confirmed the order of AO. Being aggrieved by order of Ld. CIT(A) assessee is in the second appeal before us. The ld. AR before us conceded the fact that the issue is covered against the assessee by the Hon ble Gujarat High Court in the case of CIT vs. GSTRC reported in 41 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2009. The Revenue fails to dispute this factual position. We therefore quote this tribunal's co-ordinate bench decision in Kanoi paper Industries Ltd. vs. ACIT 75 TTJ 448 that the relevant date in such case is that of month of the actual payment of wages/salaries. We therefore rely on the above co-ordinate bench decision and direct the Assessing Officer to delete the impugned disallowance as well. 4. In effect thus while any delayed deposit of PF/ESI is to be disallowed, in terms of Hon'ble Gujarat High Court's judgment in the case of Gujarat State Road Transport Corporation (supra), the question as to whether there is a delay or not may be decided by the Assessing Officer in the light of above observations by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction of the employee s contribution towards PF/ESI on the payment basis, then there is a possibility that the assessee will delay in the payment of wages to the workers. Thus, if the deduction for contribution towards PF / ESI is allowed to the assessee on the basis of date of payment for contribution towards PF / ESI, then the purpose of Wage Act, 1936 will be defeated. The ld. AR in his rejoinder submitted that no reference should be made to the payment of wages Act while deciding the issue under the Income Tax Act. 6. We have heard the rival contentions and perused the materials available on record. In the instant case, the assessee has delayed in the payment of employee s contribution of PF/ ESI as specified under the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees' account in the Provident Fund under the Provident Fund Act and/or in the ESI Fund under the ESI Act. However, the ld. AR before us has submitted that the due date for depositing the employee s contribution towards PF/ESI should be seen from the date of the payment and not from the due date. In this regard, we note that the Jurisdictional Tribunal in the identical facts and circumstance in the case of Suzlon Energy Ltd.(supra) has restored this issue to the file of the AO for fresh adjudication. Therefore, respectfully following the same we are inclined to restore the issue on hand to the file of AO for fresh adjudication and in accordance to the provision of law as well as after considering the order of this Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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