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2019 (11) TMI 459

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..... td. [2009 (12) TMI 38 - DELHI HIGH COURT] held that if the assessee had deposited employee's contribution towards Provident Fund and ESI after due date as prescribed under the relevant Act, but before the due date of filing of return under the Income Tax Act, no disallowance could be made in view of the provisions of Section 43B as amended by Finance Act, 2003. Appeal filed by the Assessee is allowed. - I.T.A.No.250/Chny/2019 (Assessment Year: 2013-14) - Dated:- 4-10-2019 - Shri Duvvuru RL Reddy, Judicial Member And Shri S. Jayaraman, Accountant Member Appellant by: Shri Saroj Kumar Parida, Advocate Respondent by: Shri J. Pavitran Kumar, JCIT ORDER PER DUVVURU RL REDDY, JUDICIAL MEMBER: This appeal filed by the Assessee is directed agai .....

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..... of authorities below. 5. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. In the assessment order, the Assessing Officer has disallowed an amount of ₹ 4,38,136/-, being belated remittance of the employee s contribution to PF and ESI as the income of the assessee in view of the provisions of section 2(24)(x) of the Act read with section 36(1)(va) of the Act. Before the ld. CIT(A), the assessee has submitted that since the entire amount has been remitted before the due date for filing of return of income, the same should be allowed as deduction under section 43B of the Act. Before us, the ld. DR has submitted that the provisions of section 43B of the Act will be ap .....

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..... assessee preferred further appeals before the Tribunal. The Tribunal relied upon the decision of the Supreme Court in the case of CIT V. Alom Extrusions Ltd. reported in 319 ITR 306, decision of the Delhi High Court in the case of CIT V. Amil Ltd. reported in 321 ITR 508 and that of the Co-ordinate Bench of the Tribunal in the case of M/s.Venkateswara Electrical Industries P. Ltd. V. DCIT in ITA Nos.1344, 1345 and 1636/Mds/2014 dated 28.8.2014 held as follows: 5. Heard both sides. Perused orders of lower authorities and the decisions relied on before us. It is not in dispute that all these payments of provident fund ₹ 16,20,571/- and ESI ₹ 17,51,490/- were made beyond the grace period/due date allowed under Provident Fund & .....

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..... filing of return. The Hon'ble Delhi High Court in the case of Cit Vs. Amil Ltd., reported as 321 ITR 508 has held that if the assessee had deposited employees contribution towards Provident Fund and ESI after due date as prescribed under the relevant Act but before the due date of filing of return under the Income Tax Act, no disallowance could be made in view of the provisions of section 43B as amended by the Finance Act, 2003. The decision of the Hon'ble Delhi High Court has been followed by the co-ordinate bench of the Tribunal in the case of JCIT Vs. M/s. S.M.Apparels (P) Ltd. (supra). The Tribunal has been consistently following the view taken by the Hon'ble Delhi High Court. Accordingly, we hold that the assessee is entit .....

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..... the due date for payment, but within the due date for filing the return of income. Hence, following the above-said decisions, we find no reason to differ with the findings of the Tribunal. Accordingly, we find no question of law much less any substantial question of law arises for consideration in these appeals. Accordingly, both the Tax Case (Appeals) stand dismissed. No costs. Consequently, M.P.No.1 of 2015 is also dismissed. 6. The ld. DR could not controvert the above findings of the Hon ble Jurisdictional High Court. Therefore, respectfully following the above decision of the Hon ble High Court, we direct the Assessing Officer to delete the disallowance made on this account and accordingly, the ground raised by the assessee is allowed. .....

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