TMI Blog2023 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... d on employees stock option scheme - allowable deduction u/s 37 or not? - HELD THAT:- We find that the issue is covered in favour of the assessee in the case of Pr. CIT Vs. Lemon Tree Hotels Pvt. Ltd [ 2019 (4) TMI 602 - SC ORDER] We also notice that the ld. CIT (Appeals) while allowing the claim of the assessee followed the decision of PCIT Vs. Lemon Tree Hotels Pvt. Ltd. [ 2018 (4) TMI 1680 - DELHI HIGH COURT] and also case of CIT Vs. Biocon Ltd [ 2020 (11) TMI 779 - KARNATAKA HIGH COURT] Thus, we see no infirmity in the order passed by the CIT (A) in allowing the claim of ESOP expenses under section 37(1) of the Act. The ground raised by the Revenue is rejected. - I.T.A No. 164/Del/2023 - - - Dated:- 4-7-2023 - Shri Narendra Kumar Billaiya, Accountant Member And Shri Challa Nagendra Prasad, Judicial Member For the Assessee : Ms. Monika Aggarwal, Advocate; For the Department : Shri Toufel Tahir, Sr. D. R.; ORDER PER C. N. PRASAD, J. M. : 1. This appeal is filed by the Revenue against the order of the ld. Commissioner of Income Tax (Appeals) (hereinafter referred to as CIT (Appeals)/National Faceless Appeal Centre (NFAC) dated 7.10.2022 for assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 and 2 of the appeal, the assessee is aggrieved with the disallowance upheld by the Ld. CIT (A) in respect of employee's contribution to ESI/PF, which was made by the CPC as an adjustment and further sustained in rectification order u/s 154 of the Act. The Ld. CIT(A) has upheld the disallowance in view of binding precedent of Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. v. CIT in Civil Appeal No. 2833 of 2016, observing as under: 4. Having pursued the rectification order, the grounds of appeal and the written submissions the issue of admissibility of payment of employees' contribution of SIC/PF beyond the due date as per the relevant Statute, raised through ground number 1 is hot tenable in view of decision of the Hon'ble Supreme Court in the case of Checkmate Services pvt. Ltd. VS CIT in Civil Appeal No2833 of 2016 with CA No2830/2016, CA No. 159/2019, CA No.2832/2016 and CA No: 2831/2016 vide judgment dated 12.10.2022, wherein it was held that deduction us 36(1)(va) of the IT Act is admissible only of the amount so received from employees for PF/ESIC is credited in specified account within the due date as per the relevant Statute. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner may specify showing the aggregate amount of recoveries made from the wages of all the members and the aggregate amount contributed by the employer in respect of all such members for the month: Provided that an employer shall send a Nil return, if no such recoveries have been made from the employees: Provided further that in the case of any such employee who has become a member of the Pension Fund under the Employees' Pension Scheme, 1995, the aforesaid Form shall also contain such particulars as necessary to comply with the are requirements of that Scheme. (3) The employer shall send to the Commissioner within one month of the close of the period of currency, a consolidated Annual Contribution Statement in Form 6-A, showing the total amount of recoveries made during the period of currency from the wages of each member and the total amount contributed by the employer in respect of each such member for the said period. The employer shall maintain on his record duplicate copies of the aforesaid monthly abstract and consolidated annual contribution statement for production at the time of inspection by the Inspector. 3.1 The Ld. Counsel referred to the above clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the close of the month concerned. However, the issue here is whether the month should be considered to be the month to which the wages relates or the month in which the actual disbursement of the wages is made, we are of the considered opinion that the expression month should mean here the month during which the wages/salary is actually disbursed irrespective of month to which the same relates. Thus the scheme of the government in this regard is that once a deduction is made in respect of the employees contribution to the provident fund from the salary/wages of the employee or the employer also makes his contribution, factually at the time of disbursement of the salary the payment in respect of such contribution should be made forthwith. If for some reason or other the payment of salary for a particular month be held up for considerable period of time it cannot be said that the employer would be liable to make payments in respect of the employer's as well as employees contribution in respect of wages for such period within a period of 15 days from the close of the month to which the wages relates. On the other hand, in our view, most appropriate interpretation woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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