TMI Blog2021 (10) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... in all the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee. - ITA No. 57/Jodh/2021, ITA No. 58/Jodh/2021 And ITA No. 73 to 76/Jodh/2021 And ITA No. 64/Jodh/2021 And ITA Nos. 62 & 63/Jodh/2021 - - - Dated:- 29-9-2021 - Shri N.K.Saini, Vice President And Shri Sandeep Gosain, Judicial Member For the Assessee : None (written submissions ) by Shri Rakesh Gupta For the Revenue : Smt. Monisha, JCIT DR ORDER PER N.K. SAINI, VICE PRESIDENT These nine appeals by different assessees are directed against the separate orders of the CIT(Appeals), National Faceless Appeal Centre, (NFAC) Delhi, as per the following details:- Sr. No. ITA No. party Date or order 1 ITA No. 57-Jodh-2021- Arpit Gulecha, Jodhpur 31.07.2021 2 ITA No. 58-Jodh-2021-Shashi Maheshwari, Jodhpur 09.06.2021 3 ITA No. 73-Jodh-2021- Opel Sulz Private Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Act, 2021 has also amended section 43, as under- In section 43B of the Income-tax Act, after Explanation 4, the following Explanation shall be inserted, namely: Explanation 5.-For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 applies. 4.2 Thus, the Finance Act, 2021, has amended section 36 of the Incometax Act, relating to other deductions. Sub-section (1) of the said section provides for allowing of deductions provided for in the clauses thereof for computing the income referred to in section 28 of the said Act. Clause (va) of the said sub-section provides for allowance of deduction for any sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. Explanation to the said clause provides that for the purposes of this clause, due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur Bench, Jodhpur. Following orders were furnished by the Ld. Counsel for the assessee, which are placed on record:- a] The Hon'ble ITAT Jodhpur Bench in case of Mohangarh Engineers and Construction Company ITA No. 05/Jodh/2021, Pali Urban Cooperative Bank Ltd. ITA No. 28 29/Jodh/2021, U T Tractor Spares Pvt. Ltd. ITA No. 43/Jodh/2021 dated 12/08/2021. b] The Hon'ble ITAT Kolkata Bench in case of Harendra Nath Biswas v/s DCIT ITA No. 186/Kol/2021 dated 16/07/2021. c] The Hon'ble ITAT Hyderabad Bench in case of Salzgitter Hydraulics Pvt. Ltd v/s ITO ITA No. 644/Hyd/2020 dated 15/06/2021. 6. In her rival submissions, the Ld. DR strongly supported the orders of the authorities below and reiterated the observations made by the Ld. CIT(A) in the impugned orders which have already been reproduced in the former part of this order. 7. We have considered the submissions of both the parties including the written submissions and placed on record in the cases of Wheel O City, Sri Ganganagar (ITA Nos. 62 63/Jodh/2021) and perused the material available on record. 8. In the present cases, it is not in dispute that the assessees d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees Contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. In the light of the aforesaid discussion we do not accept the Ld. CIT(A) s stand denying the claim of assessee since assessee delayed the employees contribtion of EPF ESI fund and as per the binding decision of the Hon ble High Court in Vijayshree Ltd. (supra) u/s 36(1)(va) of the Act since assessee had deposited the employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act. 14. The issue is no more res integra in light of series of decisions rendered by the Hon ble Rajasthan High Court starting from CIT vs. State Bank of Bikaner Jaipur (supra) and subsequent decisions. 15. In this regard, we may refer to the initial decision of Hon ble Rajasthan High Court in case of CIT vs. State Bank of Bikaner Jaipur wherein the Hon ble High Court after extensively examining the matter and considering the various decisions of the Hon ble Supreme Court and various other High Courts has decided the matter in favour of the assessee. In the said decision, the Hon ble High Court was pleased to held as under: 20. On perusal of Sec.36(1)(va) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act. 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corportation Limited (supra). In all these decisions, it has been consistently held that where ..... 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