TMI Blog2022 (2) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... o the said defect memo, the assessee vide application dt. 10/11/2021 submitted as under: Sub : Application for Condonation of delay of 37 days in filing Appeal for A.Y. 2019-20 keeping in view of Covered matter in favour of assessee by the Hon'ble ITAT Chandigarh Bench and also keeping in view of Hon'ble Supreme Court judgment relaxed the delay due to Covid-19 Hon'ble Sir/Madam, Most respectfully, I, Rajiv Kumar, submit as under:- 1. That the aforesaid appeal has been filed against the order of the learned Commissioner of Income Tax (Appeals), Shimla dated 25/08/2021, wherein addition on account of late deposit of employee's contribution of ESI/EPF was confirmed. 2. That the impugned issue is a covered matter already decided by Jurisdictional ITAT Chandigarh Bench in favour of assessee in the case of Harsoria Hospitality vs ITO : ITA No. 226/CHD/2021 on dated 25.10.2021. (Annexure-1) 3. That the appeal has been filed against the aforesaid ld. CIT(A) order only on 30.11.2021, whereas the same was due to be filed on 24.10.2021 (i.e. within 60 days from the date of receipt of order- 25.08.2021) resulting in delay of 37 days. 4. That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al law of limitation prescribed under the general law of limitation or under any special laws (both Central or State) and issued the following directions vide Miscellaneous application No. 665 of 2021 dated 23.09.2021:- 8. Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions:- I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021. II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned bonafide reasons, the delay in filing appeal may please be condoned because there was reasonable cause with the assessee for not filing this appeal in time. We shall be thankful to you for such an act of kindness. Sd/- Rajiv Kumar (Appellant) 3. During the course of hearing the Ld. Counsel for the assessee reiterated the contents of the aforesaid application and also submitted that the delay occurred due to COVID-19 pandemic, it was requested that the delay may be condoned. 4. The Ld. Sr. DR could not controvert the aforesaid contention of the Ld. Counsel for the Assessee. 5. After considering the submissions of both the parties and the material available on the record. I'm of the view that the delay of 37 days in filing the appeal by the assessee was beyond its control. Therefore the same is condoned and the appeal is admitted. 6. Following grounds have been raised in this appeal. 1. That in the facts and circumstances of the case, the ld. Commissioner of Income Tax (Appeals) erred in confirming the addition of ₹ 5,43,203/- made by ld. A.O. (CPC) on account of late deposit of employee's contribution to ESI/EPF, though the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 20/10/2021. In the said order it has been held vide paras 8 to 10 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 similar facts have already been adjudicated by the various Benches of the ITAT. 8.2 In the case of Harendra Nath Biswas vs DCIT Kolkata , ITA No. 186/Kol/2021 for the A.Y. 2019-20, similar issue has been decided vide order dated 16.7.2021 by the ITAT 'B' Bench, Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'SMC Bench in ITA No. 644/Hyd./2020 for the AY 2019-20 in the case of Salzgitter Hydraulics Private Ltd., Hyderabad vs ITO vide order dt 15.6.2021. The relevant findings given in para 2 of the said order read as under:- 2. Coming to the sole substantive issue of ESI/P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon'ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon'ble Delhi, Madras, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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