TMI Blog2022 (9) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 2,19,330/- made by the CPC towards the deposit of the employee s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted. - Decided in favour of assessee. - ITA No. 247/JP/2022 - - - Dated:- 31-8-2022 - Shri Sandeep Gosain, Judicial Member For the Assessee : Written Submission For the Revenue : Ms Monisha Choudhary (JCIT) ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 17.05.2022 of ld. CIT (A), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the IT Act for the assessment year 2019-20. The assessee has raised the following grounds :- 1. That both the lower authorities have erred in law as well as in facts of the case in considering delayed payment of Employee s share of EPF/ESI subject to 36(1)(va) and thereby made/upheld addition to the tune of Rs. 2,19,330/-. 2. That the ld. CIT (NFAC) has grossly erred in law as well in facts of the case in holding Explanation 2 to clause (va) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the due date of filing of the return of income, no disallowance U/s 36(1)(va) of the Act can be made and in support thereof, the ld. A/R submitted that recently the Coordinate Bench of the Jaipur Tribunal in assessee s own case for the preceding assessment year 2018-19 in ITA No. 285/JP/2021 dated 06.04.2022 has also taken a similar view. The ld. A/R placed reliance on the decisions of Hon ble Rajasthan High Court in case of CIT vs. JVVNL Ltd. (2014) 363 ITR 207 (Raj.), CIT vs. SBBJ Ltd. (2014) 363 ITR 70, PCIT vs. Rajasthan State Beverages Corporation Ltd. (DB IT 150/2016) (Raj.), CIT vs. Udaipur Dugdh Utpadak Sahkari Sangh Ltd. (2014) 366 ITR 163 and the decision Jaipur Tribunal in the case of DCIT vs. Rajasthan State Electricity Board in ITA No. 981/JP/2017. It was further submitted that the recently Jodhpur Bench of the Tribunal has also taken a similar view in case of Mohangarh Engineers and Construction company vs DCIT, CPC (in ITA No. 405/JODH/2021 dated 12.08.2021) and similar view has been taken by the Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (in ITA No. 359/Bang/2021 dated 12.10.2021). It was further submitted that the explanation added to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Section 36(1)(va) is strictly in accordance with law and clearly comes under the prima facie adjustments as envisaged U/s 143(1)(a)(iv) of the Act. 6. We have heard the rival contentions and perused the material available on record. In case of Mohangarh Engineers and Construction Company vs DCIT, CPC (Supra), speaking through one of us, we have extensively dealt with the identical matter relating to employee s contribution towards ESI/PF and our findings therein read as under: - 13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees s contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under Section 139 is permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, the ld D/R has referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, we find that there are express wordings in the said memorandum which says these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years . In the instant case, the impugned assessment year is assessment year 2019-20 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- 7. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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