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TMI Blog2020 (11) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, M/s Hemla Embroidery Mills Private Limited, M/s Bihar State Warehousing Corporation Limited and M/s Sagun Foundry Private Limited on the same subject which are binding on the department. 2. Appellant therefore pleads that the decision should be deleted. Appellant craves leave to add, alter, amend or rescind any of the above grounds of appeal." 2. The facts narrated by the revenue authorities are not disputed by both the parties, therefore no need to repeat the same for the sake of convenience. 3. At the time of hearing, Ld. Counsel for the assessee stated that the issue involved in grounds of appeal has already been adjudicated and decided in favour of the assessee by the Hon'ble Supreme Court of India as well as Hon'ble Jurisdiction High Court and other Hon'ble High Courts, which he has mentioned in his written submissions dated 22nd September 2020. He has also filed his written submissions dated 22nd September 2020 by stating that all facts and case laws supported the claim of assessee and therefore, he requested that after going through the written submissions dated 22nd September 2020 filed by the assessee, the addition in dispute may be deleted and appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 415 3 ESIC 21/09/2013 24/09/2013 12,036 3 ESIC 21/02/2014 25/02/2014 3,17,706 4 ESIC 21/02/2014 25/02/2014 15,439 4 ESIC 21/02/2014 25/02/2014 2,260 4 PF Act 20/04/2014 21/04/2014 10,265 1 Total 9,21,008 In the relevant period appellant has tendered the payment by cheque along with the prescribed challans to the authorised bank for accepting such payments within the prescribed period permitted under the relevant Acts. Normally, the payments through cheque take 2-3 days in the clearing and the payment challans are dated based on the date of clearing and not the date on which the payment was tendered. Further where the last prescribed day is a public holiday, limitation period stays extended by a day 1.02 Thus, apparently this may appear as a delayed payment, these payments have been tendered by the appellant within the prescribed periods under the relevant Acts to the bank receiving such payments. Hon'ble Courts have consistently taken the view that on clearing the cheque, the date of deposit of cheque should be reckoned as a date of making payment for the purpose of compliance under the Acts. Hence, prima facie the above aggrega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the financial year but also before the due date of filing of the IT return beyond the financial year, by dropping second proviso to section 43B with effect from 01/04/2004. Hon'ble Supreme Court in the case of M/s. Alom Extrusions Ltd. (2009)/185 7axmann 416 (SC) have held this amendment to be retrospective right from the date of the introduction of the provision i.e. 01/04/1988. Thus, legislature has already corrected its error in drafting of this provision as pertain to Employer's contribution by the above amendment. 3.03 Employer s and Employee's contribution were placed on the same ground for the purpose of initial taxation by making simultaneous provisions in the Income Tax Act with effect from 01/04/1988. Based on our understanding of the provisions it appears that legislature has missed similar amendment in section 36(1 )(va) for not subjecting the disallowance of the amount deposited of such contributions before due date of filing of 11 return. Cogent reading of both the provisions supports such identical treatment of both Employee's and Employer's contribution under IT Act. Hence, appellant request your honour to follow the above reasoning for allowing the claim. 4.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed, even if the same is deposited beyond the time stipulated as due date as prescribed under the provisions of Statute governing PF/ES1 Act. Thus, the applicable provision as is contained in Section 36(1 )(va) is read down by most of the Constitutional Courts including our Jurisdictional High Court (barring Hon'ble Gujarat High Court and Hon'ble Kerala High Court) to make it workable as otherwise the tax-payer will lose the deduction for ever if the employee contribution is not deposited within due date as prescribed under relevant statute , although the said contribution stood deposited by employer belatedly before the due date for filing of return of income u/s 139(1) of the 1961 Act and the amount will stood brought to tax as income keeping in view provisions of Section 2(24)(x) of the 1961 Act so far employee share of contribution towards Ph ,ES1 and other employees welfare funds is concerned. No doubt it is well cherished objective that there should not be an unjust enrichment of the employer of the amount which it collects from its employees towards employees share of PF , ESI and other employees welfare funds and in the ideal situation , the said amounts ought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court as per the order dated 4lh July 2017 (84 taxmann.com 185 (SC)). Only Hon'ble Gujarat High Court and Hon'ble Kerala High Court have taken a contrary view in the case of M/s. Gujarat State Road Transport Corporation Limited (2014) 223 Taxmann 0398 and Popular Vehicles & Services (P.) Ltd. [2018] 96 taxmann.com 13 (Kerala) which have been disputed before the Hon'ble Supreme Court. As the majority of the High Courts including Jurisdictional Hon'ble Delhi High Court have taken the view of allowing such deductions where the same are deposited beiore due date of filing of IT return, appellant requests your honour to follow- these majority judgements as well as binding judgement ot Hon'ble Jurisdictional High Court which are much more logical and convincing vis-a-vis the opposite view taken by Hon'ble Gujarat High Court and Hon'ble Kerala High Court and allow the appeal of the appellant. Naman Desai Annexure-A A) Details of delayed payment on account of ESI: Due Date Paid Date Amount 21/06/2013 22/06/2013 2,347 21/06/2013 23/07/2013 2,61,901 21/06/2013 22/07/2013 12,015 21/07/2013 23/07/2013 3,292 21/07/2013 23/07/2013 2,466 21/08/2013 23/08/2013 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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