TMI Blog2021 (12) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... but prior to the filling of the Return u/s.139(1). Disallowances qua empoyeess contribution towards PF and ESI, sustained by the Ld. CIT(A) stands deleted. - Decided in favour of assessee. - ITA Nos. 71 & 72/ASR/2021 - - - Dated:- 9-11-2021 - SHRI N. K. SAINI, VICE PRESIDENT AND SHRI N. K. CHOUDHRY, JUDICIAL MEMBER For the Assessee : Shri Sandeep Vijh, CA For the Revenue : Shri S.M.Surendranath, Sr.DR ORDER Per N. K. Choudhry, JM The assessee has preferred these appeals against the separate orders dated 02.08.2021 impugned herein passed by the CIT(A), National Faceless Appeal Centre (NFAC), Delhi, for the assessment years 2018-2019 2019-2020, u/s.250 of the Income Tax Act, 1961 (hereinafter referred to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the Return u/s.139(1) of the Act . The concluding part of the Tribunal s order is as under: - The CIT(A) while upholding the disallowance/addition qua employees contributions towards PF ESI mainly focused on two aspects/determinations- (i) non-applicability of the provisions of Section 43B of the Act to the employee s share qua PF ESI and (ii) applicability of the amended provisions of Section 36(1)(va) and 43B of the Act wherein Explanations have been inserted by Finance Act, 2021. For better clarification and ready reference the Explanations 2 and 5 inserted in sections 36(1)(va) and Section 43B of the Act respectively, are reproduced herein, which reads as under :- Section 36(1)(va)- Explanation 2.-For the removal of doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional High Court in the case of CIT Vs. M/s Hemla Embroidery Mills (P) Ltd. (366 ITR 167) (P H HC) and in the case of CIT Vs. M/s Mark Auto Industries Ltd. (358 ITR 43) (P H HC) clearly held that the assessee is entitled to claim deduction of employee s share of ESI PF u/s.43B of the Act, if the same has been deposited prior to the filing of return of income u/s.139(1) of the Act. From the above judgments of the Hon ble jurisdictional High Court, it is clear that the Hon ble Court has not drawn any distinction between the employee s and employer s share qua PF ESI contributions. Admittedly there are no contrary judgements of the jurisdictional High Court against the assessee on the aspect under consideration hence, first determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 qua employees share in respect of PF ESI Act, is also unsustainable . 5.4 In view of the above discussions, the disallowances of ₹ 5,88,203/- for A.Y.2018-2019 and ₹ 60,540/- for A.Y.2019-2020 made by the A.O. and confirmed by the CIT(A) are not sustainable and, hence, the same stands deleted. 6. In the result, both the appeals of the assessee are allowed. 6. Since the facts involved in the present case are identical to the facts involved in the above case, therefore, respectfully following the aforesaid order of the Coordinate Bench of the Tribunal, the disallowances of ₹ 7,13,663/- for A.Y.2018-2019 and ₹ 8,82,045/- for A.Y.2019-2020 qua empoyeess contribution towards PF and ESI, sustained by the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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