TMI Blog2022 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... NFAC , both dated 31.07.2021. Since identical grounds have been raised, both appeals were taken up together for hearing and are being disposed off by way of consolidated order for the sake of brevity. 2. First, we take up assessee s appeal in ITA No.1295/Del/2021 pertaining to Assessment Year 2017-18. The assessee has raised following grounds of appeal:- 1. That under the facts and circumstances of the case the Ld.CIT(A) has erred in law as much as in fact in upholding the addition of Rs.22,11,593/- made on account of disallowance of belated payment of employee's contribution towards ESI/PF. While upholding the disallowance Ld. CIT(A) has failed to appreciate that the disallowance could not be made: a. As the payment towards employee's contribution of ESI and PF have been made either during the financial year under consideration or before the due date of filing of return as described in section 139(1) of Income Tax Act, 1961. As per the landmark judgment passed by the Hon'ble Supreme Court in the case of CIT vs. Alom Extrusions Ltd. [(2009) 185 Taxman 416 (SC)] wherein it was held that the 'due date' means the due date of return of income as per se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before the hearing of the appeal. 2. The only effective ground in this appeal is against the sustaining of addition of Rs.22,11,593/- on account of belated payment of employee s contribution towards ESI/PF. 3. Facts giving rise to the present appeal are that the assessee filed its return of income. The income was processed u/s 143(1) of the Income Tax Act, 1961 ( the Act ) by assessing the total income of Rs16,60,390/-. The Assessing Officer ( AO ) while processing the return of income, made addition of Rs.24,09,960/- on account of late deposit of payment of employee s contribution towards ESI and PF. 4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), who after considering the submissions, dismissed the appeal. 5. Now, the assessee is in appeal before this Tribunal. 6. Ld. Counsel for the assessee submitted that the issues raised in this appeal are squarely covered in favour of the assessee. He placed reliance on the decisions of Hon ble Delhi High Court rendered in the case of PCIT vs Pro Interactive Service (India) Pvt.Ltd. in ITA No.983/2018 [Del.] order dated 10.09.2018 and in the case of CIT vs AIMIL Ltd. 321 ITR 508 and stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en reconfirmed through this amendment by way of insertion of explanation. 2. A harmonious construction will not emerge if these amendments were to be construed as prospective. Therefore, relying on the principles of interpretation of statutes as has been adumbrated by Hon'ble Apex Court supra, it is to be held that the clarification brought out by explanation 2 to Sec. 36(1)(va) will equally hold good for the AYs prior to 2021-22. 6. In view of detailed discussions made at paragraph 5.2 to 5.16 above, I am of the considered view that the disallowance made u/s 36(1)(va) of the Act and consequent addition and adjustment made u/s 143(1)(a) by the Ld.A.O. does not require any interference. Accordingly, grounds of appeal No.1 to 3 are rejected. 9. We find merit in the contention of Ld. Counsel for the assessee that the issue is covered by the judgement of Hon ble Delhi High Court rendered in the case of AIMIL Ltd. (supra) wherein it has been held:- 17. We may only add that if the employees contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per the landmark judgment passed by the Hon'ble Supreme Court in the case of CIT vs. Alom Extrusions Ltd. [(2009) 185 Taxman 416 (SC)] wherein it was held that the 'due date' means the due date of return of income as per section 139(1) not as per respective fund due date. Further, the Hon'ble Delhi HC also stated that in the case of CIT vs. Aimil Ltd. [(2010) 188 Taxman 265(Delhi)] 'due date' means the due date of return of income as per section 139(1) not as per respective fund due date. b. Ld. CIT(A) while upholding the disallowance has relied upon the decision of Hon'ble High Courts which are non-jurisdictional in the case of the assessee and as per binding principles of precedents, if the decision of jurisdictional High Court is available on any issue then the law laid down by the jurisdictional High Court will prevail upon the decisions of non-jurisdictional High Courts. The decision of Jurisdictional High Court in the case of CIT vs. Aimil Ltd. [supra] is applicable to the assessee's case and this decision has again been followed by the Hon'ble Delhi High Court In the case of PC IT vs Pro Interactive Services (India) Pvt. Ltd. dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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