TMI Blog2022 (8) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... ntribution to PF and ESI, stating that the same has been deposited before the due date of filing return u/s 139(1) of the I.T. Act. However, the Hon ble jurisdictional High Court in the case of CIT v. Merchem Limited [ 2015 (9) TMI 560 - KERALA HIGH COURT ] and in the case of Popular Vehicles Services Private Limited v. CIT [ 2018 (8) TMI 133 - KERALA HIGH COURT ] had clearly held that employees share of PF and ESI, which was not deposited within the due date under the respective Acts, is not an allowable deduction u/s 36(1)(va) of the I.T. Act. Therefore, following the judgments of the Hon ble jurisdictional High Court in the case of CIT v. Merchem Limited [ 2015 (9) TMI 560 - KERALA HIGH COURT ] and Popular Vehicles Services Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the assessee by the order of the Tribunal in assessee s own case in ITA No. 199/Coch/2016 (order dated 16.11.2016) for assessment year 2011-2012. 5. The learned Departmental Representative supported the orders of the Income Tax Authorities. 6. We have heard rival submissions and perused the material on record. On identical facts, the Tribunal in assessee s own case (supra) by following the earlier Tribunal order, had held that addition u/s 41(1) of the I.T. Act is not warranted. The relevant finding of the Tribunal for assessment year 2011-2012 (supra), reads as follows:- 3.4 We have heard the rival parties and perused the material on record. In assessee s own case, the division bench of the Tribunal have decided the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d supra. In respect of the first issue, i.e., Whether the deposits received from the dealers can be considered as income of the assessee, the Tribunal has observed as under. The assessee received Deposit for the supply of freezer from the concerned vendors. The freezers are required to safe keep the edible ice-creams. They are required for the purpose of business. The small vendors may not be inclined to purchase the freezers as they are not affordable to them considering their status. This made the assessee company to supply freezer on the receipt of fixed deposit and the compensation of the spread-over period. They are attached with a liability. The accrual comes only on termination of agreement. The business necessity requires cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 202 ITR 492 (Cal). (c) Sugauli Sugar Works (Impugned) Ltd. 236 ITR 518 (SC); 5 I.T.A. Nos. 73-79/Coch/2014 (d) Star India P. Ltd. vs. Addl. CIT 311 ITR (ST) 235 (Mumbai). (e) Govind Prasad Prabhu Nath 171 ITR 417 (All.); (f) Hindustan Housing and Land Development Trust Ltd. 161 ITR 524 (SC); (g) Ace Builders Pvt. Ltd. vs. CIT 225 ITR 746 (SC); (h) Mantra Tanta Yantra Vigyan vs. CIT 300 ITR 140 (Raj.); and (i) Guardian Industries Corpn. vs. Assistant Director of Income-tax 7 DTR 594 (Del.). are also supports the plea of the assessee. The accrual has been dealt with in the relied judgments. Hence, under the given set of facts and circumstances, we by relying on the above decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, we do not find any infirmity in the order of the Ld. CIT(A) and accordingly, the same is confirmed. 7. In the result, all the appeals filed by the revenue stand dismissed. 3.5 Admittedly, the issue in question is covered in favour of the assessee by the order of the division bench of the Tribunal, cited supra. Both the parties have submitted that the issue is pending for adjudication before the Hon ble jurisdictional High Court. No contrary High Court judgment has been cited. Hence, respectfully following the order of the division bench of the Tribunal, in assessee s own case ( supra), we uphold the order of the first appellate authority as correct and in accordance with law and no interference is called for. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the same has been deposited before the due date of filing return u/s 139(1) of the I.T. Act. However, the Hon ble jurisdictional High Court in the case of CIT v. Merchem Limited (supra) and in the case of Popular Vehicles Services Private Limited v. CIT (supra) had clearly held that employees share of PF and ESI, which was not deposited within the due date under the respective Acts, is not an allowable deduction u/s 36(1)(va) of the I.T. Act. Therefore, following the judgments of the Hon ble jurisdictional High Court in the case of CIT v. Merchem Limited (supra) and Popular Vehicles Services Private Limited v. CIT (supra), we hold that since the employees contribution to PF and ESI was not deposited within the due date specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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