TMI Blog2022 (7) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta Bench of this Tribunal in the case of Harendra Nath Biswas [ 2021 (7) TMI 942 - ITAT KOLKATA] - The ld. DR fairly submitted there is no contrary to the case law cited above. We find that the issue is covered in favour of the assessee as the assessment year involved is AY 2018-19 and the Explanation-5 inserted by Finance Act, 2021 to section 43B w.e.f. 01.04.2021 is not applicable to the assessment year under consideration. Assessee appeal allowed. - I.T.A. No. 02/GTY/2022 - - - Dated:- 7-7-2022 - SHRI MANISH BORAD , ACCOUNTANT MEMBER And SHRI SANJAY SARMA , JUDICIAL MEMBER For the Appellant : Shri Somnath Ghosh , Advocate For the Respondent : Shri N. T. Sherpa , JCIT ORDER PER SONJOY SARMA , JM : The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf is altogether unfounded, unjustified and untenable in law. 4. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-NFAC considered improper facts, failed to consider proper position in law and came to an erroneous findings thereupon in upholding the impugned disallowance of Rs.48,20,810/- made by the Ld. Assistant Commissioner of Income Tax, C.P.C. by erroneous invocation of the provision of u/s. 2(24)(x) read with s.36(1)(va) of the Income Tax Act, 1961 which is wholly opposed to law. 2. At the time of hearing, ld. AR has submitted that the core issue in this appeal is disallowance of sum of Rs. 48,20,810/- being contribution of employees share towards ESI and PF set up for the welfare of the employee u/s 36(1)(va) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reference is reproduced as under: 2. The sole grounds of appeal raised by the assessee is against the Ld. CIT(A) in confirming the action of AO who disallowed/added back a sum of Rs. 1,10,62,263/- on account of delayed deposit of employees contribution to PF and ESI u/s 36(1)(va) read with Section 2(24)(x) of the Income Tax Act, 1961 ( hereinafter referred to as the Act) despite the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce the order of Hon ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon ble Calcutta High Court has taken note of the Hon ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon ble Calcutta High Court s decision in Vijayshree Ltd. supra is reproduced as under: This appeal is at the instance of the Revenue and is directed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 5. 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. The appeal of the assessee is hereby allowed and the impugned addition made by the lower authorities is ordered to be deleted. 6. In the result, the appeal of assessee is allowed. Order is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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