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TMI Blog2010 (8) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... id within the allowed grace period. For the month of Jan-2005, the last date of this payment with grace period was on 20-Feb-2005, which was a Sunday and was made on 21-Feb- 2005. The Appellant submits that the disallowance is not valid as there are various decisions in favour of the assessee. 2. The Assessing Officer erred in making a disallowance of ₹ 11,78,314/- being delayed payment of employee s contribution of PF, but paid after just 1 to 2 days from the end of the grace period and before the due date of filing the return. The appellant submits that the said disallowance is to be deleted. 3. The Assessing Officer erred in making a disallowance of ₹ 28,388/- being delayed payment of employee s contribution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Assessing Off icer and observed as follows:- 2.1 In this regard, it may be pointed out that since the payment have been made beyond the due date i.e., 15th of the next month, the same are in violation of section 36(1)(va) r.w.s. 2(24)(x) and hence not allowable. The same view has also been upheld in the case of (i) CIT Vs South India Corp. 242 ITR 114 (Ker.); (ii) Hitech (I) P. Ltd. Vs Union of India, 227 ITR 446 (AP); (iii) CIT Vs Panwi Tissues Ltd., 313 ITR 137 (Bom.). Wherein Hon ble High Court have held that right of deduction would be lost if the sum is paid after the due date. The requirement to make payment within the due date is meant to ensure that the beneficial legislation shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as employees contribution is the same, namely, the funds of the employer. In this view of the matter it has been held that the contribution of the employees paid within the due date for filing the return of income is allowable under section 43B. This order of the Tribunal has not been referred to in the subsequent order of the Tribunal dated 28th January 2010 in the case of the same assessee, namely, Simplex Engineering Foundry Works, for the assessment year 2004-05 in ITA NO.378/Mum./2009, and with reference to the earlier order, the disallowance of the employees contribution was upheld by the Tribunal. In another order passed on 28th January 2010 in ITA no.6847/Mum./2008 (assessment year 2005-06) in the case of Pink Pen Private Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are in respect agreement, apply to the fact situation before us as well. In this view of the matter, as long as even employees contribution to PF and ESIC are paid by the assessee before the due date of f iling the income tax return, the same are to be allowed as deduction in computation of income of the assessee. It is an undisputed position that the assessee has paid the employees contribution to PF and ESIC well before the due date of filing of income tax return. Learned Departmental Representative does not dispute that aspect of the matter. On these facts, and in view of the legal position summed up above, we are of the considered view that the impugned addition indeed deserves to be deleted. We direct so. The assessee gets t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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