TMI Blog2018 (9) TMI 1873X X X X Extracts X X X X X X X X Extracts X X X X ..... wards employee s contribution on or before the relevant (Due Date) under the PF Act/ESI Act, to the extent there is a short fall in deposit of the employee s contribution/ESI contribution the assessee shall not be entitled to the deduction. Assessee as an employee has to strictly adhere to the due date of payment as prescribed in the relevant Act i.e. Provident Fund Act. We have also perused the para 38 of Chapter VI of the Employees Provident Fund Act 1952 provide that the employer's and the employee's contribution shall be remitted within 15 days of the close of every month refer to close of the month to which the wages pertain but not to the month in which the wages are paid and contribution is deducted. Taking into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of employees contribution to PF / ESIC, the due date is to be reckoned with reference to the first date of actual payment of salary or wages and not with reference to close of the concerned month to which salary or wages pertains. 2.1 In law and in the facts and circumstances of the appellant's case, the Ld. CIT(A) ought to have appreciated that the time constraint of 20/21 days for depositing the employees contribution to PF / ESI is to be considered from the date on which the actual payment of salary or wages is made. Hence, even if disallowance is made, in any case it cannot be made towards the deposits of.₹ 9,33,114 which are made within the time limit of 20 days from the date of payment of salary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,09,582 20/10/2011 09/11/2011 Oct.2011 3,17,305 20/11/2011 10/0112011 Nov, 2011 4,09,588 20/12/2011 15/02/2012 Dec, 2011 3,26,868 20/01/2012 19/03/2012 Jan, 2012 3,47,475 20/02/2012 19/03/2012 Feb, 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. During the course of appellate proceedings before us, the ld. counsel has furnished paper book containing details of submission made before the assessing officer and ld. CIT(A). During the course of assessment proceedings and appellate proceedings, he has also filed copies of various judicial pronouncements. He has also contended referring ground of appeal no.2.1 pertaining to the part of payment towards employees contribution that due date has to be considered from the month of actual payment of salary/wages. On the other hand, ld. departmental representative has supported the order of ld. CIT(A) and also placed reliance on the decision of Hon ble Gujarat High Court in the case of Gujarat State Road Transport Corporation. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted this contention of the assesse that the non-abstante clause of section 43B cannot override the specific provisions in section 36(1)(va) for employees contribution. Before the ld. CIT(A), the assessee has submitted that for the purpose of employees contribution to PF/ESIC, the due date is to be reckoned with reference to the first date of actual payment of salary and wages and not with reference to close of the concerned month to which salary or wages pertains and the time constraint of 20/21 days for depositing the employees contribution to PF/ESI is to be considered from the date on which the actual payment of salary or wages is made. The Ld. CIT(A) has not agreed with the contention of the assessee and held that as per section 36(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required as employer to credit the employee s contribution to the employee s account in the relevant fund, in the present case, the provident fund under the Provident Fund Act. It is also held that on fulfilling the conditions as mentioned under section 36(1)(va) the assessee shall be entitled deduction with respect to such employee s contribution. We consider that explanation to section 36(1)(va) makes it very much clear that for the purpose of clause (va) of sub-section(1) of section 36 due date means the date by which the assessee is required as an employer to credit the employee s contribution to employees account in the relevant fund under any act, Rule or notification issued thereunder or under any standing order, award or contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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