TMI Blog2021 (12) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... t Member And Smt. Beena Pillai, Judicial Member For the Revenue : Smt. Priyadarshini Besaganni, JCIT (DR) For the Assessee : None ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER This appeal by the assessee is directed against the order of the CIT(A)-11 dated 15/9/2021 for the asst. year 2018-19. 2. The assessee has raised following grounds of appeal:- 1. The learned Commissioner of Income-tax (Appeals) - 11, has erred in passing the appellate order in the manner passed. The appellate order as passed is void-ab-initio and bad in law and is liable to be quashed. 2. The learned Commissioner of Income-tax (Appeals) - 11 has erred in dismissing the appeal filed by the appellant without following the binding decision of jurisdictional High Court and honourable Apex court. The order passed without following the legal precedents is bad in law and therefore liable to be quashed. 3. The learned Commissioner of Income-tax (Appeals) - 11 should have, by following the principles laid down by binding precedents allowed the appeal. On the contrary, the dismissal of appeal despite binding judicial precedents makes the impugned order bad in law and liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x) of the Act. On appeal, the CIT(A) confirmed the same. Against this assessee is in appeal before us. 8. We have heard both the parties and perused the materials on record. In this case, the said amount has been remitted to the Government beyond the date stipulated under the relevant Act. However, the same was deposited within the due date by filing the return of income u/s 139(1) of the Act. 9. The assessee made a sum of ₹ 3,13,290/- beyond the time prescribed under the relevant Act. Now the claim of assessee is that the above payment has been made towards PF beyond due date prescribed under the relevant Act, however, the same was made within due date of filing the return of income u/s 139(1) of the Act for the year under consideration. As such, the said amount cannot be disallowed u/s 36(1)(va) of the Act and it is not hit by explanation 2 to sec.36(1)(va) of the Act which calls for payment within the due date prescribed under the relevant Act. For this purpose he relied on the judgment in the case of Essac Teraoka (P.) Ltd. v. Dy. CIT 366 ITR 408 (Kar.), wherein it has held as under: 15. From bare perusal of this provision, it is clear that under the provision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through a contractor, the contribution payable by such member (in this Scheme referred to as the member's contribution). 19. From bare perusal of 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. 20. 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 the employer and the employee. That being so, if the contribution is made on or before the due date for furnishing the return of income under subsection(1) of Section 139 of the IT Act is made, the employer is entitled for deduction. 21. The submission of Mr. Aravind, learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct further makes it very clear that the amount actually paid by the assessee on or before the due date applicable in this case at the time of submitting returns of income under section 139 of the Act to the Revenue in respect of the previous year can be claimed by the assessees for deduction out of their gross income. The above said statutory provisions of the Income-tax Act abundantly makes it clear that, the contention urged on behalf of the Revenue that deduction from out of gross income for payment of tax at the time of submission of returns under section 139 is permissible only if the statutory liability of payment of provident fund or other contribution funds referred to in clause (b) are paid within the due date under the respective statutory enactments by the assessees as contended by learned counsel for the Revenue is not tenable in law and therefore the same cannot be accepted by us. 11. The ld.AR drew our attention to the deletion of the second proviso to section 43B of the Income-tax Act by the Finance Act 2003, which provision has come into force, with effect from April 1, 2004. The reliance placed upon the decision of the apex court in Allied Motors P. Ltd. v. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. We find no merit in the argument of the ld.DR since the explanation as provided in Finance Act 2021 prescribes that the amendment in both sec.36(va) as well as 43B by inserting corresponding explanation that although impugned PF comes in the form of provision and the same is applicable from 1/4/2021 onwards only. In the present case we are concerned with the asst. year 2017-18 and the amended provision could not be applied retrospectively as it is only applicable w.e.f 1/4/2021. Being so no disallowance could be made by the AO in respect of PF/ESI paid within the due date of filing return of income. Though, it was beyond the date mentioned in the respective Act. This view of ours is supported by various judgment relied on by the ld.AR. Accordingly the appeal of the assessee is allowed. 15. Grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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