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2020 (3) TMI 863 - AT - Income TaxAddition made in respect of employees contribution towards PF/ESI - delay in remittance of Provident Fund and ESI - Addition u/s 36(1)(va) r.w.s. 2(24)(x) - HELD THAT - As decided in M/S. INDUSTRIAL SECURITY INTELLIGENCE INDIA PVT. LTD 2015 (7) TMI 1063 - MADRAS HIGH COURT we find that the Tribunal has rightly relied on the decision of the Supreme Court in the case of CIT V. Alom Extrusions Ltd. 2009 (11) TMI 27 - SUPREME COURT whereby held that omission of second proviso to Section 43B and amendment to first proviso by Finance Act, 2003 are curative in nature and are effective retrospectively, i.e., with effect from 1.4.1988 i.e., the date of insertion of first proviso. The Delhi High Court in the case of CIT V. Amil Ltd. 2009 (12) TMI 38 - DELHI HIGH COURT held that if the assessee had deposited employee's contribution towards Provident Fund and ESI after due date as prescribed under the relevant Act, but before the due date of filing of return under the Income Tax Act, no disallowance could be made in view of the provisions of Section 43B as amended by Finance Act, 2003. In the present case, the assessee had remitted the employees contribution beyond the due date for payment, but within the due date for filing the return of income. Hence, following the above-said decisions, we find no reason to differ with the findings of the Tribunal.- Decided in favour of assessee.
Issues:
1. Addition made in respect of employees' contribution towards PF/ESI. Analysis: The appeal filed by the Revenue challenged the order of the ld. Commissioner of Income Tax (Appeals) regarding the addition made for employees' contribution towards PF/ESI. The Assessing Officer disallowed an amount under section 36(1)(va) r.w.s. 2(24)(x) of the Income Tax Act, 1961 due to a delay in remittance of Provident Fund and ESI. The ld. CIT(A) allowed the ground raised by the assessee, citing a decision of the Hon'ble Jurisdictional High Court. The Revenue appealed to the Tribunal, with the ld. DR supporting the Assessing Officer's order and the ld. Counsel for the assessee backing the ld. CIT(A)'s decision based on the High Court ruling. The Tribunal examined the case, noting the belated remittance of employees' contribution to PF and ESI as income of the assessee under the relevant Act sections. The assessee argued that since the amounts were remitted before the due date for filing the return of income, they should be allowed as deduction under section 43B of the Act. The ld. CIT(A) ruled in favor of the assessee, aligning with the decision of the Hon'ble Jurisdictional High Court, which held similarly in a previous case. The High Court upheld the Tribunal's decision, referencing precedents that supported the assessee's position. It emphasized that if the employee's contribution to PF and ESI was paid before the due date for filing the income tax return, no disallowance could be made under section 43B. The Court dismissed the Revenue's appeal, finding no substantial question of law to consider. The ld. CIT(A) followed this High Court decision in allowing the appeal of the assessee, and the Tribunal upheld this decision, dismissing the Revenue's appeal. In conclusion, the Tribunal upheld the ld. CIT(A)'s decision to delete the disallowances made under section 43B for the assessment years in question. The appeal filed by the Revenue was dismissed, in line with the decisions of the High Court and the Tribunal's findings.
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