TMI Blog2022 (5) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... - I.T.A. No. 1600/Del/2021 - - - Dated:- 27-4-2022 - SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER Assessee by : None Revenue by : Shri Om Prakash , Sr. DR ORDER This appeal is filed by the Assessee against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi in sustaining the disallowance made u/s. 36(1)(va) in respect of Contribution made to PF ESI. 2. In spite of issue of notice, none appeared nor any adjournment was sought. As the issue in appeal was decided by the Tribunal in a number of appeals this appeal is disposed off by hearing the Ld. DR. 3. On hearing the Ld. DR and perusing the orders of the authorities below, I find that the Central Processing Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as explaining the due date of payment of the aforesaid dues have been brought into the statute by Finance Act 2021 w.e.f. 1.4.2021, however, learned Commissioner (Appeals) has applied them to the impugned assessment year by stating that the amendments will have retrospective operation as they are clarificatory in nature. However, as I find this issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in case of Mr. Vansh Jain vs. DCIT (supra). While considering identical disallowance made by applying the amended provisions of section 36(1)(va) and section 43B, the coordinate bench has held that the amended provisions would apply prospectively w.e.f. assessment year 2021-2022. The observations of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 983/2018 order dated 10.09.2018 has held that no disallowance is called for where the assessee had paid the employees' contribution to PF ESI before the due date of furnishing of return of income under section 139(1) of the I.T. Act, 1961. 7.1. I find the Hon'ble Delhi High Court in the case of Pro Interaction Service (India) Pvt. Ltd., (supra), following the decision in the case of CIT vs. AIMIL Ltd., (supra), has held that legislative intent was/is to ensure that the amount paid is allowed as expenditure only when payment is actually made. It was further held that it was not the legislative intent and objective to treat belated payment of Employees' Provident Fund Employees' State Insurance Scheme as deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard both the parties and perused all the relevant material available on record. As regards Ground No. 1, the assessee company has not deposited the employees' contribution within the due date which is prescribed under the said statute i.e. Provident Fund and ESIC. This issue is dealt by the Hon'ble Delhi High Court in case of CIT vs. M/s. Bharat Hotels Ltd. 410 ITR 417 wherein the issue is decided in favour of the revenue, without considering the decision of the Hon'ble Delhi High Court in case of CIT vs. AIMIL Ltd. (20io) 321 ITR 508 (Del.). But the Ld. AR relied upon the decision of the Hon'ble Delhi High Court in case of Pr. CIT vs. Pro Interactive Service (India) Pvt. Ltd. ITA No. 983/2018 pronounced on 10.09.2018 wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clauses thereof for computing the income referred to in section 28 of the said Act. Clause (va) of the said sub-section provides for allowance of deduction for any sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. Explanation to the said clause provides that for the purposes of this clause, due date means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued there under or under any standi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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