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TMI Blog2023 (5) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal has been recalled by the order of the Tribunal dated 13.04.2023 passed in MA No. 405/Mum/2022, and thus this appeal came before us for hearing. The grounds raised by the assessee are reproduced as under: 1. On facts and in law, the Ld. Commissioner of Income tax Appeals (hereinafter referred to as Ld. CIT-A) had erred in confirming the disallowance of Rs. 10,09,648/- being belated payment of PF/ESIC u/s 36(1)(va) of the Income-tax Act. 2. On facts and in law, the Ld. CIT(A) erred in not appreciating that the amendment made by Finance Act, 2021 is prospective in nature under the facts and circumstances, the addition of Rs. 10,09,648/- ought to have been deleted. 2. Before us, the Ld. Counsel of the assessee admitted that empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el has referred to the decision of the Co-ordinate Bench of the Tribunal (Kolkata) Bench in the case of Kanoi Paper and Industries Ltd ACIT in ITA No. 1260/Mum/1996. The Tribunal in the case of Master Polishers (supra) has referred to the said finding. For ready reference, said finding is reproduced as under: "6. Clause 38 of the Employees' Provident Fund Scheme, 1952, fixes the time limit for making payment in respect of contribution to the provident fund to be 15 days 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 expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities and direct the assessing officer to examine whether the payments of contribution in the present case were made within 15 days (allowed with further grace period of 5 days) from the close of the respective months during which the disbursement of the salary/wages were actually made. The assessing officer should recompute the amount disallowable, if any, on the above basis and take appropriate action accordingly." 3.1 However, we find that the Hon'ble Madras High Court in the case of the Commissioner of Income-tax v. Madras Radiators & Pressing Ltd. 264 ITR 620 Madras has held that the term "every month" in clause 58 of the Provident Fund Scheme should be read as month in which the wages were actually earned i.e. salary payable. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recover the employees' contributions from the wages of the employees. As per para 38 of the Scheme, the employer is required to remit both the contributions together with the administrative charges thereon within 15 days before the close of every month. 7. Thus as seen from the above provisions, it is clear that it is the responsibility of the employer to make payment of the contributions at the first instance irrespective of the fact, whether the wages are paid in time or not. Hence the actual payment of wages on the 7th day of succeeding month would not any way alter the situation and give room for interpreting that the "close of 15th day" has to be calculated from the end of the month in which the wages were actually paid. The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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