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TMI Blog2015 (10) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the return of income while there was no such provision in the Act". 3. Briefly, the facts are, assessee a company filed its return of income for the impugned AY on 30/09/2011 declaring total income of Rs. 51,45,337. During the assessment proceeding, AO on verifying the information on record, noticed that assessee has not made statutory payments relating to employer's and employees' contribution towards PF and ESI within the due date under the relevant statute. He, therefore, opined that in view of the provisions contained under Explanation to section 36(1)(va) payments not made within the due date of the relevant Acts cannot be allowed as deduction. He quantified the disallowance on account of delayed payment of PF & ESI at Rs. 33,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the employees'/employer's contributions towards PF & ESI before the due date for furnishing of return of income evident from the challans submitted, I hold that the AO was not justified in making the additions in respect of ESI: Rs. 9,47,752 and PF: Rs. 33,45,709, and hence, delete the same." 6. We have considered the submissions of the parties and perused the orders of revenue authorities. At the outset, ld. counsels for both the parties agreed that this particular issue is covered by the decisions of the ITAT, Hyderabad Bench in case of VBC Industries Ltd Vs. DCIT in ITA No. 143/Hyd/13 and others dated 08/05/15. On perusal of the aforesaid decision of the coordinate bench, it is seen that while considering identical issue relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn u/s 139(1), same would be allowable as deduction. In fact, Hon'ble HP High Court in case of Nipso Polyfabriks Ltd. (supra) while considering identical issue of delayed remittance of employees contribution to PF and ESI have held that both employees and employer's contribution to PF & ESI stand at par and the provisions of section 43B would apply. Thus, as can be seen, while there is only one decision in favour of the department, there are decisions of at least four different high courts in favour of the assessee. Moreover, when view expressed on a particular issue by non jurisdictional high courts are conflicting and the decision of jurisdictional high court on the issue is not available, the principle to be followed, as held by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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