TMI Blog2022 (6) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ntribution of EPF ESI fund and as per the binding decision of the Hon ble High Court in Vijayshree Ltd [ 2011 (4) TMI 63 - ITAT KOLKATA] . 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. Credit of TDS - HELD THAT:- As there is no material available on record. Therefore, ends of justice, this issue is remand back to the file of AO for deciding the same by way of speaking order. We also directed the assessee to remain vigilant in receiving notices of hearing from AO and should not request for any adjournment unless otherwise required for reasonable cause and should file all necessary documents so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reason and technicality should not be allowed to prevail over substantial justice. In view of this facts and circumstances, we are inclined to condone the delay in filing the appeal and admit the appeal for adjudication. 3. At the time of hearing, none appeared on behalf of the assessee, in such situation we have no other option but to decide the appeal with the assistance of ld. DR. The core issue in this appeal is disallowance of sum of Rs. 1,27,428/- being contribution of employees share towards ESI and PF set up for the welfare of the employee u/s 36(1)(va) read with section 2(24)(x) of the Income Tax Act, 1961 when the payments were made within the due dates of filing of return u/s 139 of the Income Tax Act, 1961. 4. While g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee contributing/depositing the same before the due date of filing of return of income u/s 139(1) of the Act. 3. Brief facts of the case is that the CPC while processing the return disallowed/added Rs. 1,10,62,263/- on the ground that employees contribution to employees provident fund (EPF) and ESI fund has been deposited beyond the due date applicable under the provision of ESI Act, 1948 and EPF Act by invoking the provision of Section 36(1)(va) of the Act. Aggrieved by this disallowance, the assessee filed the appeal before the national Faceless Appeal Centre (NFAC), Delhi where the Ld. CIT(A) has taken note of the assessee s submission that no disallowance was warranted in respect of delayed deposit of employees contribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against an order dated 28th April, 2011 passed by the Income Tax Appellate Tribunal, A Bench, Kolkata in ITA No. 1091/Kol/2010 relating to assessment year 2006-07 by which the Tribunal dismissed the appeal preferred by the Revenue against the order of CIT(A). The only issue involved in this appeal is as to whether the deletion of the addition by the AO on account of Employees Contribution to ESI and PF by invoking the provision of Section 36(1)(va) read with Section 2(24)(x) of the Act was correct or not. It appears that the Tribunal below, in view of the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., reported in 2009 Vol.390 ITR 306, held that the deletion was justified. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above proposition of law and the issue being squarely covered in favour of the assessee, the impugned order of the ld. CIT(A) is set aside in this issue. 7. However, in respect of issue no. 2, credit of TDS of Rs. 18,591/- there is no material available on record. Therefore, ends of justice, this issue is remand back to the file of AO for deciding the same by way of speaking order. We also directed the assessee to remain vigilant in receiving notices of hearing from AO and should not request for any adjournment unless otherwise required for reasonable cause and should file all necessary documents so as to facilitate the AO for passing speaking order. Needless to mention that the assessee should be given proper opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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