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TMI Blog2010 (9) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... , which disallowance was sustained by the CIT(A). Even the contention that the disallowance even if sustained will only go to increase the business profits of the assessee which is exempt u/s 10A as laid down in the case of Gemplus Jewellery India Ltd.[ 2010 (6) TMI 65 - BOMBAY HIGH COURT] is acceptable. We, therefore, direct that the addition sustained by the CIT(A) be deleted. In the result, the appeal of the assessee is allowed. - SHRI N.V.VASUDEVAN(J.M) SHRI PRAMOD KUMAR(A.M) For the Appellant by: Shri Nitesh Joshi For the Respondent by: Shri S.S. Rana ORDER PER N.V.VASUDEVAN, J.M, This is an appeal by the assessee against the order dated 8/12/2009 of CIT(A) XVII.. Mumbai relating to assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15/03/2006 20/03/2006 March, 2006 200,023 15/04/2005 24/04/2006 1,410,324 The A.O was of the view that the payment of employees contribution to PF made beyond the due date prescribed under the relevant law, should be treated as assessee s income under section 2(24)(x) of the Act. The AO was of the further view that the assessee was not entitled to claim of deduction of the same by virtue of the provisions of section 36(1)(va) of the Act. The provisions of Sec.36(1)(va) of the Act, provides that any sum received by the Assessee from any of his employees to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d gold and platinum jewellery. 4. Aggrieved by the aforesaid order of the Assessing Officer the assessee filed an appeal before the CIT(A). The CIT(A) held that in respect of payment made within the grace period of 5 days the addition made by the Assessing Officer has to be deleted. In respect of payment made beyond the period of 5 days grace period the addition made by the Assessing Officer was sustained by the CIT(A). Aggrieved by the order of the CIT(A) the assessee has preferred the present appeal before the Tribunal. 5. We have heard the submissions of the ld. Counsel for the assessee who submitted that even if the addition made by the Assessing Officer is sustained, the assessee would still be entitled to deduction under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sums are contributed to the employees account in the relevant fund on or before the due date specified in the PF etc legislation, the assessee shall be entitled to a deduction. The Court also noticed that the second Proviso to s. 43B (b) provided that any sum paid by the assessee as an employer by way of contribution to any provident fund etc. shall be allowed as a deduction only if paid on or before the due date specified in 36(1)(va). After the omission of the second Proviso w.e.f 1.4.2004, the deduction is allowable under the first Proviso if the payment is made on or before the due date for furnishing the return of income. In Alom Extrusions 319 ITR 306 (SC), the deletion of the second Proviso has been held to be with retrospective effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down in Vinay Cement. 7. In view of the aforesaid decision of the Hon ble Delhi High Court the assessee is entitled to claim the deduction even in respect of a sum of ₹ 6,07,000/-, which disallowance was sustained by the CIT(A). Even the contention that the disallowance even if sustained will only go to increase the business profits of the assessee which is exempt under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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