TMI Blog2022 (5) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... t the disallowance made by the CPC under Section 36(1)(va) of the Act towards late payment of PF is sustainable in the eyes of law; and, we, therefore, reject these grounds of appeal raised by the assessee. - ITA No. 300/Ahd/2021 - - - Dated:- 22-4-2022 - DR. ARJUN LAL SAINI , ACCOUNTANT MEMBER AND SHRI T. R. SENTHIL KUMAR , JUDICIAL MEMBER Assessee by : None Written submission on record Revenue by : Shri R. R. Makwana , Sr. DR ORDER PER T. R. SENTHIL KUMAR , JUDICIAL MEMBER This is an appeal filed by the assessee against the order dated 30.09.2021 passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the CIT(A) ) relating to the Assessment Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee contribution to PF aggregating to Rs. 23,97,818/- as per the original TAR. B. Ld. AO and Ld. CIT Appeals ought to have observed the apparent error in the reporting payment for the month of September'17 taking clues of previous as we as post payments made by the appellant and observed apparent excess payment of Rs. 14,16,000/- reported in the TAR and hence ought not to have taxed the said amount. C. Ld. AO and Ld. CIT Appeals have further erred in disallowing the payments made after due date but within grace period of five days allowed by the PF department, aggregating to Rs. 5,57,483/-. D. Ld. AO and Ld. CIT Appeals ought to have followed the judgment of Hon'ble Rajasthan High Court in the case of M/s. Rajasthan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission submitted that there was a typographical error in reporting the details of the employees' contribution to PF in the Tax Audit Report for September 2017. It is also submitted that instead of the actual amount paid of Rs. 1,57,315/-, an amount of Rs. 15,73,315/- (number '3' was typed twice) was reported. The Tax Auditor duly corrected the said error by filing the revised Tax Audit Report on 28.03.2019 and copy of the revised Tax Audit Report was placed on record. It is, therefore, submitted that the addition of Rs. 14,16,000/- out of the total addition of Rs. 23,97,818/- on account of such undisputed facts deserves to be deleted in absence of collection of any such amount from the employees towards PF. 6. It can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee in his written submission that several Hon'ble High Courts as well as ITAT have taken a view that the employees' contribution paid before the due date of filing of the return under Section 139(1) of the Act cannot be disallowed under Section 36(1)(va) of the Act. It was, therefore, submitted by the assessee that the CPC is not correct in making the disallowance on the late payment of the provident fund amount by relying upon the following case laws:- i) CIT vs. Alom Extrusions Ltd. [2009] 319 ITR 306 (SC) ii) CIT vs. State Bank of Bikaner Jaipur [2014] 363 ITR 70 (Raj.) iii) CIT vs. Hemla Embroidery Mils (P.) Ltd. [2014] 366 ITR 167 (P H) iv) CIT vs. Nuchem Ltd. [2015] 59 taxmann.com 455 (P H) v) CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) applies, the assessee shall be entitled to deduction in computing the income referred to in section 28 with respect to such sum credited by the assessee to the employees' account in the relevant fund or funds on or before the due date mentioned in explanation to section 36(1)(va). Consequently, it is held that the learned tribunal has erred in deleting respective disallowances being employees' contribution to PF Account/ESI Account made by the AO as, as such, such sums were not credited by the respective assessee to the employees' accounts in the relevant fund or funds (in the present case Provident Fund and/or ESI Fund on or before the due date as per the explanation to section 36(1)(va) of the Act i.e. date by which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employers for depositing the contribution other dues is withdrawn herewith. This decision shall apply from February, 2016 (contributions for month of January, 2016 and payable in the month of February, 2016). Thus the EPFO has literally withdrawn the grace period of five days with effect from February 2016, whereas the assessment year involved herein is AY 2018-19. Therefore, following the jurisdictional High Court's judgment in the case of Gujarat State Road Transport Corporation (supra) and the circular issued by the Head Office of EPFO (supra), the question of grace period does not applicable to the assessee, since the assessment year involved is AY 2018-19 and he accordingly pleaded that the addition made by the CPC be confir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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