TMI Blog2022 (3) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, in light of the latest decision in case of Pro Interactive Service (India) Pvt. Ltd. [ 2018 (9) TMI 2009 - DELHI HIGH COURT] the issue is covered in favour of the assessee. Therefore, the CIT(A) as well as the Assessing Officer was not at all justified in disallowing this claim. Thus, the order of the CIT(A) is not just and proper. The appeal of the assessee is thus allowed. - ITA No. 223/Ind/2021 - - - Dated:- 30-3-2022 - Ms. Suchitra Kamble, Judicial Member And Shri Bhagirath Mal Biyani, Accountant Member For the Appellant : Shri G.B. Agrawal, AR. For the Respondent : Shri R.P. Maurya, Sr. D.R. ORDER PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This appeal is filed by the assessee against the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delayed payment of employees contribution towards PF and ESI. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assesse. 5. The Ld. A.R. submitted that the sole issue in the present assessment is related to upholding addition of Rs.5,48,663/- under Section 36(1)(va) of the Act in respect of delay in payments of Employee s contribution of Provident Fund/Employees State Insurance. The Ld. A.R. submitted that the Centralized Processing Centre (CPC) has made the said addition without appreciating that the same was deposited within the time available to the assessee under Section 43B of the Act i.e. before filing the return of income. The Ld. A.R. further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited in Appeal No.333 of 2004 (Guj. HC) * Kamal Textiles vs. ITO (1991) 59 Taxmann 555 (M.P. HC) 6. The Ld. D.R. submitted that the CIT(A) has rightly dismissed the appeal of the assessee thereby stating that the Finance Act, 2021 has amended Section 43B of the Act as well as Section 36(1)(va) by inserting Explanation 5 to Section 43B of the Act and Explanation 2 to Section 36(1)(va) of the Act wherein it is categorically stated that the provisions of these Sections shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of Section 2 applies as well as it will never be applied for the purpose of determining due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent decision of the Hon ble Gujarat High Court in case of Pr. CIT vs. M/s Suzlon Energy Ltd. R/Tax Appeal No. 860 of 2019 order dated 11.02.2020. 7. The Ld. A.R. relied upon the decision of the Indore Bench in the case of Nataraj Dal Mill, Indore vs. ACIT ITA No. 153/IND/2021 order dated 06.12.2021. 8. We have heard both the parties and perused all the relevant materials available on record. The CIT(A) has confirmed the disallowance on the ground that insertion of Explanation 2 and 5 in Section 43B, 36(1)(va) by Finance Act 2021 is retrospective in nature. Therefore, the payment made to the contribution related to employee s contribution of PF and ESI and after the due date of statutory limit under those Statute but before filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier dates. Though the Ld. A.R. categorically stated that some of the Hon ble High Courts has decided this issue against the assessee but majority of the Hon ble High Court decisions are in favour of the assessee where employee s contribution was paid after the due date but before filing of Income Tax return. 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 ESI. 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. (2010) 321 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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