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TMI Blog2015 (10) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ome for A.Y. 2006-07 on 28.12.2006 declaring total income of Rs. Nil. The case was selected for scrutiny and thereafter the assessment was framed u/s. 143(3) vide order dated 26.12.2008 and total income was determined at Rs. 66,85,653/- before setting off of brought forward losses and depreciation. Aggrieved by the order of A.O, Assessee carried the matter before CIT(A). CIT(A) vide order dated 04.10.2010 dismissed the appeal of the Assessee. Aggrieved by the order CIT(A), Assessee is now in appeal before us and has raised the following grounds:- 1. (a) The learned Commissioner of Income Tax (Appeals)-VI, has erred in law and on facts in confirming disallowance of Rs. 3,52,876/- being Employees' Contribution to Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has deposited the employees contribution of provident fund after the due date prescribed under the relevant Act. He was therefore of the view that Assessee was not eligible for deduction in view of the provisions of Section 36(1)(va) of the Act and accordingly disallowed the delayed payment of Rs. 3,52,876/- being the amount of Provident fund and ESIC contribution. Aggrieved by the order of A.O, Assessee carried the matter before CIT(A). CIT(A) upheld the order of A.O and dismissed the appeal of the Assessee by holding as under:- 2.3 I have considered the facts of the case; assessment order and appellant's submission. A.O. made addition of employee's contribution amounting to Rs. 352876 to P.F.and ESIC not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in PF.Act., the same becomes disallowable if payment is made after due date and accordingly, the sec. 43B cannot be applied. Therefore, mixing employee's contribution to PF along with employer's contribution is disregarding the clear and unambiguous provisions of IT, Act. Even otherwise, if provisions of sec. 43B are applied to employee's contribution, it will make sec. 36(i)(va) redundant. For example u/s 36(1)(va) any payment made after 20 days from the end of the month is not allowable, which means payment of employee's contribution to PF after 20th April following the end of previous year will not be allowable, whereas if the employee's contribution is considered u/s 43B then the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clear provisions and legislative intent, the employee's contribution is allowable only if the same is paid within due dates under P.F. Act or other relevant Act. Since, there has been delay in payment for the employee's contribution to PF and ESIC the same is not allowable U/s 36(1)(va). Addition made by the AO is therefore, confirmed. 6. Aggrieved by the order CIT(A), Assessee is now in appeal before us. 7. Before us, ld. A.R. submitted that though there has been delay in depositing of employees contribution of P.F. fund but since the amounts have been deposited before the due date of filing of return, the claim of the Assesse be allowed. He placed reliance on the decision in the case of Hindustan Organics Chemicals Ltd. in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the said sum is credited by the assessee to the employees accounts in the relevant fund or funds on or before the "due date" under the Provident fund Act, ESI Act, Rule, Order or Notification issued thereunder or under any Standing Order, Award, Contract or Service or otherwise. .." 9. Before us, it is ld. A.R's submission that the decision of Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd. be considered and not the decision of Hon'ble Gujarat High Court in the case of Gujarat State Transport Corporation (supra) because the decision of Karnataka High Court is a later decision and it is after considering the Gujarat High Court decision. We are unable to agree with the submission of ld. A.R. to follow the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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