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TMI Blog2019 (1) TMI 1927X X X X Extracts X X X X X X X X Extracts X X X X ..... rovident fund belatedly. Therefore, the Assessing Officer has disallowed the same on the ground that the assessee has not remitted within the prescribed due date as per the relevant Act, hence, he treated the same as deemed income of the assessee under section 2(24)(x) r.w.s. 36(1)(va) of the Act. Accordingly, he added back to the total income of the assessee. 3. On appeal before the ld. CIT(A), it was submitted that though the assessee has paid the amounts belatedly, the contribution received from the employees has been paid to the account before due date of filing of the return as per section 139(1) of the Act. The ld.CIT(A) by following the decision of the coordinate bench of the tribunal in the case of ACIT vs. M/s. Eastern Power Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was of the opinion that in view of the clear provisions of section 2(24)(x) r.w.s. 36(1)(va) of the Act, any recovery from employees towards provident fund contribution is deemed to be income of the assessee, if the employer not paid the same to the provident fund account of the employee within due date specified under the provisions of PF Act. It is the contention of the assessee that second proviso to section 43B of the Act provides that no deduction shall be allowed unless such sum is actually been paid on or before due date as specified in explanation to 36(1)(va) of the Act which was omitted by the Finance Act, 2003 w.e.f. 1.4.2004 and accordingly, there was no special provision regarding employees' contribution to PF. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f contributions, the contributions means and include both employees' and employer's share. Similarly, section 2(c) of the Provident Fund Act defines the contribution to mean a contribution payable in respect of a member under the scheme or the contribution payable in respect of an employee to whom the scheme applies. There is a prescribed mode of payment of contributions under the PF Act. Under the said Act, the employer shall contribute both employees and employer share along with administrative charges before the due date specified under the PF Act. The Act prescribed only one due date for depositing the contribution i.e. 15th of subsequent month with the grace period of 5 days which indicates that there is no difference between employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Karnataka High Court, in the case of Essae Teraoka (P) Ltd. Vs. DCIT 366 ITR 408 took the view that the word contribution occurring in section 43B of the Act would include employees' contribution to PF in the light of the definition of the word contribution as per the provisions of section 2(c) of the PF Act. As per the said section, contribution would mean both employer's contribution and employees' contribution. Accordingly, it was held that the provisions of section 43B of the Act allowing deduction for payment made before the due date of filing of Income Tax return cannot be ignored. Similarly, the ITAT, Hyderabad Tribunal in the case of Tetra Soft (India) Pvt. Ltd. Vs. ACIT (2015) 40 ITR (Trib) 470 held that when assessee remitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or before the due date specified under the provisions of provident fund Act. The D.R. also relied upon the decision of Gujarat High Court, reported in (2014) 366 ITR 170, wherein the Hon'ble Gujarat High Court held that since assessee had not deposited said contribution to respective fund account on the date as prescribed in explanation to section 36(1)(va) of the Act, disallowance made by the A.O. was just and proper. Though, the D.R. relied upon certain judicial precedents which are in favour of the revenue, in view of the decision of Hon'ble Supreme Court, in the case of CIT Vs. M/s. Vegetables Products Ltd. reported in 88 ITR 192, wherein the Hon'ble Supreme Court held that if two reasonable constructions of a taxing provision are pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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