TMI Blog2021 (12) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... ee - ITA No. 212/Chd/2021 - - - Dated:- 13-12-2021 - N.K. Saini, Vice President And Sudhanshu Srivastava, Member (J) For the Appellant : Anil Batra, Advocate For the Respondents : Priyanka Dhar, Sr. DR ORDER Per N. K. Saini, Vice President This is an appeal by the assessee against the order dt. 28/07/2021 of the Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi. 2. Following grounds have been raised in this appeal. 1. That the Ld. Commissioner of Income (Appeals) has erred in law as well as on facts in upholding the disallowance of the expenditure of ₹ 2,79,560/- (₹ 85,458/- ESI and ₹ 1,94,102/- EPF totaling ₹ 2,79,560/-) claimed on account of deposit in EPF/ESI as employees share while processing of return under section 143(1) r.w.s. 154 which is arbitrary and unjustified. 2. That the Ld. Commissioner of Income Tax (Appeals) has erred in upholding disallowance in as much as it is a debatable issue whether the delayed payment towards employees share in EPF/ESI is deductible or not which is beyond the scope of processing under section 143(1) r.w.s. 154 and as such the disallowance made is illegal, unjustified an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent cases, it is noticed that an identical issue having similar facts has already been adjudicated by the ITAT, Chandigarh Bench in the aforesaid referred to cases, wherein one of us is author of the order dated 20/10/2021. In the said order it has been held vide paras 8 to 10 in ITA Nos. 191 192/Chd/2021 in case of Raja Ram Vs. ITO, Yamunanagar as under:- 8. I have considered the submissions of both the parties and perused the material available on record. 9. In the present cases, it is noticed that an identical issue having similar facts has already been adjudicated by the ITAT, Jodhpur Bench in the aforesaid referred to case, wherein the undersigned is author of the order dated 28.09.2021 and it has been held vide paras 7 to 10 in ITA in ITA Nos. 71 72/Jodh/2021 as under:- 7. We have considered the submission of both the parties and perused the material available on record. 8. In the present cases, it is not in dispute that the assessees deposited the contribution of PF ESI belated in terms of section 36(1)(va) of the Act, however, the said deposits were made prior to filing of return of income u/s. 139(1) of the Act. 8.1 Identical issue with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond 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 contribution 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 employees contribution before filing of Return of Income. Therefore, the assessee succeeds and we allow the appeal of the assessee. 9. Similar view has been taken by the ITAT Hyderabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned 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) and Sec. 43(B)(b) and analyzing the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Corporation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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