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TMI Blog2021 (10) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... nds are not pressed for which an endorsement is made. Accordingly all grounds other than ground No.6 is dismissed as not pressed. Ground No.6 Now let us consider the ground No.6 4. Facts of the case are that assessee filed e-filed its return of income vide acknowledgment No. 257680801261017 on 26/10/2017 offering income at Rs. 3,04,48,410/- for the year ended 31/3/2018. Later the assessee filed return u/s 139(9) of the Act vide acknowledgment No.646189280120618 on 12/6/2018 declaring total income of Rs. 3,04,48,410/-. The return was processed by CPC u/s 143(1) of the Act adding an amount of Rs. 19,04,701/- for the reason of delay in payment of employees' contribution of PF u/s 36(1)(va) of the Income-tax Act. The assessee filed petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay such sum was incurred and the evidence of such payment is furnished by the assessee along with such return. In short, this provision states, notwithstanding anything contained in any other provision contained in this Act, a deduction otherwise allowable in this Act in respect of any sum payable by the assessee as an employer by way of contribution to any fund such as provident fund shall be allowed if it is paid on or before the due date as contemplated under Section 139(1) of the IT Act. This provision has nothing to do with the consequences, provided for under the PF Act/PF Scheme/ESI Act, for not depositing the "contribution" on or before the due dates therein. 16. In the present case, admittedly, though the employer did not depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-para (1) of paragraph-30, it is clear that the word "contribution" is used not only to mean contribution of the employer but also contribution to be made on behalf of the member employed by the employer directly. 2O. Paragraph-38 of the PF Scheme provides for Mode of payment f contributions. As provided in sub-para (1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act within fifteen days of the closure of every month pay. It is clear that the word "'contribution" used in Clause(b) of Section 43B of the IT Act beans the contribution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt in the relevant fund under any Act, rule or order or notification issued thereunder or under any standing order, award, contract of service or otherwise." Prior to the above clause was inserted to section 36 giving statutory deductions of payment of tax under the provisions of the Act, section 43B(b) was inserted by the Finance Act, 1983, which came into force with effect from April 1, 1984. Therefore, again the provision of section 43B(b) clearly provides that notwithstanding anything contained in the other provisions of the Act including section 36(l) clause (Va) of the Act, even prior to the insertion of that clause the assessee is entitled to get statutory benefit of deduction of payment of tax from the Revenue. If that provision is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to force, with effect from April 1, 2004. The reliance placed upon the decision of the apex court in Allied Motors P. Ltd. v. CIT [1997] 224 ITR 677 and also on the decision in General Finance Co. v. CIT (Asst.) [2002] 257 ITR 338 (SC) in respect of applicability of section 43B(b) and also omission of clause (a) or (c) or (d ) or (e) or (B referred to above occurred in the first proviso to section 43B, supports the case of the assessees and also relevant paragraphs extracted from Allied Motor's case [1997] 224 ITR 677 and paragraph 59 referred to supra in this judgment from the Finance Bill with all fours supports the case of the assessee/ respondents. Therefore, we have to answer the substantial question of law No. 1 framed by this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7] 85 taxmann.com 301 (Kolkata - Trib.) 11. The ld.DR contention is that as per sec.43B(b) of the Income-tax Act and explanatory notes to Finance Act 1983, that Employees' Contribution was never intended to be covered by sec.43B. This has been reiterated and reinforced through Explanation 5 to sec.43B and Explanation 2 to 36(1)(va) inserted by Finance Act 2021. If it was the intention of the legislature expressly made clear in the Finance Act 2021, through the explanatory notes, it would necessarily to be held that Explanation 5 to sec. 43B and Explanation 2 to sec.36(1)(va) would apply to all pending matters as on date. 12. We find no merit in the argument of the ld. DR since the explanation as provided in Finance Act 2021 prescribes tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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