TMI Blog2022 (7) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... Sec. 43B of the Act could not have been disallowed by the A.O As the facts and the issue involved in the aforesaid order of the Tribunal in the case of Ind Synergy Lyd. [ 2022 (4) TMI 36 - ITAT RAIPUR] remains the same as are there before us in the case of the present assessee, therefore, we respectfully follow the same. We, thus, in terms of our aforesaid observations set-aside the order of the CIT(Appeals) and direct the AO to vacate the disallowance made by him u/s.36(1)(va) of the Act qua the delayed deposit of the employees share of contribution of EPF/ESIC. - Decided in favour of assessee. - ITA No. 94/RPR/2021, 97/RPR/2021, 102/RPR/2021, 103/RPR/2021, 02/RPR/2022, 06/RPR/2022, 07/RPR/2022 - - - Dated:- 20-7-2022 - Shri Ravish Sood, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : Ms. Sheetal Agrawal, AR - for Sl. No.1, S/Shri Prafulla Pendse, AR-for Sl. No.2, Sumit Jain, AR- for Sl. No.3, R.B Doshi, AR- for Sl. Nos.4 to 7 For the Revenue : Shri G.N Singh, DR ORDER PER BENCH: The captioned appeals filed by the aforementioned assessee s are directed against the respective orders passed by the Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before the lower authorities, it was submitted by the Ld. AR that as the impugned order was summarily passed u/s.143(1) of the Act, therefore, there was no occasion for the assessee to place on record the aforesaid documents before the lower authorities. 6.1 After having given a thoughtful consideration, we find substance in the claim of the Ld. AR for not having filed the aforesaid documents before the lower authorities. We, thus, admit the aforesaid additional evidence that has been filed by the assessee before us. 7. We have heard the ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his aforesaid contentions. 8. Admittedly, it is though a matter of fact borne from record that the assessee had delayed the deposit of an amount of Rs.1,99,167/- towards employee s share of contribution of provident fund i.e. beyond the stipulated time period contemplated under the Provident Fund Act, 1952, but had deposited the same prior to the due date of filing of his return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not the employees contribution to welfare funds falls within the scope and domain of Sec. 43B of the Act, we may herein draw support from the judgment of the Hon ble High Court of Bombay in the case of CIT Vs. Hindustan Organic Chemicals Ltd in ITA No. 399/12, dated 11.07.2014. In the said case, the Hon ble High Court of Bombay was, inter alia, called upon to answer the following substantial question of law that was raised in the appeal filed by the revenue:- (A). Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal, in law, was right in allowing the claim of the Assessee on account of delayed payments of P.F. Of employees' contribution amounting to Rs.1,82,77,138/- by relying on the decision of the Hon'ble Supreme Court in the case of CIT vs. Alom Extrusion Ltd. (319 ITR 306) ? After referring to the amendments that were made available to Section 43B of the Act, the Hon ble High Court answered the aforesaid question in the affirmative and upholding the order of the tribunal qua the aforesaid aspect dismissed the appeal filed by the revenue. Also, we find that a similar view had been arrived at by various Hon ble High Courts, as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the clarificatory amendments made in the Finance Act, 2021 and the Finance Act, 2021 has put an end to this controversy. 5.2 Admittedly there is plethora of judgments in favour of the Assessee s contention and of the Revenue. The controversy with regard to divergent views of different High Courts, has been settled by the Hon'ble Apex Court in the case of CIT Vs. M/s. Vegetables Products Ltd. (88 ITR 192) by laying the dictum that if two reasonable constructions of a taxing provision are possible that construction which favours the Assessee must be adopted. The Hon ble jurisdictional High Court in the case of CIT Vs. M/s Hemla Embroidery Mills (P) Ltd. (366 ITR 167) (P H HC) and in the case of CIT Vs. M/s Mark Auto Industries Ltd. (358 ITR 43) (P H HC) clearly held that the assessee is entitled to claim deduction of employee s share of ESI PF u/s.43B of the Act, if the same has been deposited prior to the filing of return of income u/s.139(1) of the Act. From the above judgments of the Hon ble jurisdictional High Court, it is clear that the Hon ble Court has not drawn any distinction between the employee s and employer s share qua PF ESI contributions. Admittedly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned judicial pronouncements, we, herein conclude, that as the employees contributions to PF and ESI of Rs.2,88,976/-was deposited by the assessee before the due date of filing of its return of income for the year under consideration, therefore, the same being saved by the provisions of Sec. 43B of the Act could not have been disallowed by the A.O. We, thus, in the backdrop of our aforesaid deliberations set-aside the order of the CIT(A) and vacate the disallowance of Rs. 2,88,976/- made by the A.O. Thus, the Ground of appeal No. 1 is allowed in terms of our aforesaid observations. As the facts and the issue involved in the aforesaid order of the Tribunal in the case of Ind Synergy Lyd. (supra) remains the same as are there before us in the case of the present assessee, therefore, we respectfully follow the same. We, thus, in terms of our aforesaid observations set-aside the order of the CIT(Appeals) and direct the AO to vacate the disallowance of Rs.1,99,167/- made by him u/s.36(1)(va) of the Act qua the delayed deposit of the employees share of contribution of EPF/ESIC. The Grounds of appeal No. 1 to 3 are allowed in terms of our aforesaid observations. 11. Ground of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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