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TMI Blog2021 (9) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Act, 1961 (For short 'the Act'). 2. Brief facts of the case are that the assessee filed its return of income for the assessment year under consideration declaring the total income of Rs. 6,71,670/- During the course of assessment proceedings it was noticed from the tax audit report that the assessee had received a sum of Rs. 3,18,265/- from his employees as contribution to Provident fund and ESI which was not remitted to the employees account on or before the due date as per the provisions of law. Accordingly, the AO made disallowance of the said amount on account of delayed deposit of employees' contribution to the provident fund and ESI u/s. 36(1) (va) read with section 2(24) (x) of the Act. The assessee ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alom Extrusions Ltd., 185 Taxman 416(SC) ii) CIT vs Solar Exports, 27 Taxman.com 289 (SC) iii) CIT vs Lakhani Rubber Works, 188 Taxman 132 (P&H) iv) CIT vs Rai Agro Industries Ltd. 334 ITR 122 (P&H) v) CIT Vs Hemla Embroidery Mills Pvt. Ltd. (2014) 366 ITR 167 (P&H) vi) CIT vs Mark Auto Industries Ltd. (2013) 358 ITR 43 (P&H) vii) CIT vs Nuchem Ltd. ITA No. 609 of (2015) 59 taxmann.com 455 (P&H) dated 22.09.2014 viii) H.P. Tourism Dev. Corpn. Ltd. 328 ITR 508 (H.P.) 5. The ld. counsel further submitted that since the findings of the Ld. CIT(A) are not in accordance with the ratio laid down by the Hon'ble Supreme Court, Hon'ble jurisdictional High Court and the Hon'ble Himachal Pradesh High Court, the same is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contributions towards the provident funds, the ESI funds or other such welfare schemes must be made before furnishing the return of income under sub-section (1) of section 139. On a conjoint reading of section 36(1)(va) and section 43B it is obvious that earlier section 43B made reference to the due date as prescribed under section 36(1)(va). There was a conflict between the first and the second provisos and the second proviso was deleted. The benefit of this amendment must be extended to the employees' contribution also." 8. Similarly, the Coordinate Bench of the Tribunal has decided the identical issue in favour of the assessee in the case of M/s. New Time Contractors and Builder (P) Ltd. Vs. DCIT ITA No. 1243/Chd/2018 for the A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case is covered in favour of the assessee by the judgments of the Hon'ble Supreme Court and the Hon'ble High Courts referred above. In the case of CIT vs. M/s. Nipso Polyfabriks Ltd. (supra), the Hon'ble jurisdictional High Court has held that if the employer does not deposit such contributions within the time prescribed by the respective Acts, the employer may face criminal case and become liable to pay fine or penalty, but that cannot be the reason to deny the benefit of section 43B of the Act, which contemplates that the assessee can take the benefit of such contributions if the same are paid before furnishing the return of income. Hence, in our considered view, the findings of the ld. CIT(A)) are contrary to the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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