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TMI Blog2018 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... payees have already paid the taxes on their incomes which include the receipts from the assessee. He observed that no evidence was furnished in support of the same. He also observed that the second proviso to section 40(a)(ia) of the Act was effective only from the A.Y.2013-2014 and cannot come to the rescue of the assessee for the assessment year 2012-2013. 5. Ld. AR of the assessee submitted that the Hon'ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd., 377 ITR 635 (Del) has held that the second proviso to Section 40(a)(ia) of the Act is declaratory and curative in nature and has retrospective effect from 01.04.2005. Hence, he submitted that the CIT(A) was not justified in observing that the second proviso to Section 40(a)(ia) of the Act was not applicable to the assessee in present year under appeal. He submitted that he has no objection if the matter is remanded back to the file of AO to verify whether the payees have paid the taxes on the amount receipt from the assessee or not. If the AO finds that the payees have paid the taxes on the amount received from the assessee on the basis of evidence to be filed by the assessee before the AO, then no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,625/- 30-3-2012 2. May, 2011 11,313/- 30-3-2012 3. June, 2011 10,855/- 30-3-2012 4. July, 2011 10,415/- 30-3-2012 5. August, 2011 8,595/- 30-3-2012 6. September, 2011 9,002/- 30-3-2012 7. October, 2011 9,345/- 12-9-2012 8. November, 2011 8,968/- 12-9-2012 9. December, 2011 8,674/- 12-9-2012 10. January, 2012 8,543/- 12-9-2012 11. February, 2012 8,269/- 12-9-2012 12. March, 2012 7,923/- 15-9-2012 Total 1,12,527/- Therefore, he disallowed the deduction for Rs. 1,25,576/- and added the same to the total income of the assessee. On appeal, the CIT(A) confirmed the action of AO. 10. Ld.AR of the assessee relied on the decision of the Hon'ble Delhi High Court in CIT Vs. AIMIL Limited [2010] 321 ITR 508 (DEL), wherein it was held that the employees' contribution towards EPF and ESI etc. deposited after the due date but before the time allowed for filing the return u/s.139(1) will not call for any disallowance u/s.36(1)(va) of the Act. On the other hand, ld. DR supported the orders of lower authorities. 11. I find that the Hon'ble Karnataka High Court in the case of Essae ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Bihar State Warehousing Corporation Ltd vs CIT, (2016) 71 taxmann.com 247(Patna) after considering the decision of Hon'ble Bombay High Court in the case of Ghatge Patil Transports Ltd and P&H High Court in the case of CIT vs. Hemla Embroidery Mills (P) Ltd., 2014) 366 ITR 167 (P&H) and the decision of Hon'ble Supreme Court in the case of Alom Extrusion Ltd., (supra) has held as under: "9.On further appeal both by the Department and the Assessee, the appeal of the Department was dismissed as also that of the assessee. Aggrieved by the same, the present appeal has been filed by the assessee. The appeal was admitted on the following substantial questions of law:- "(i) Whether on the facts and in the circumstances of the case the Tribunal is justified in upholding the addition of Rs. 8,32,507/- made under Section 2 (24)(x) read with Section 36(l)(va) of the Income-tax Act? (ii) Whether on the facts and in the circumstances of the case the Tribunal is correct in holding that the provision for gratuity was not made towards approved gratuity fund and that the gratuity has not become payable during the financial year and that the provision has not been made on actuarial valuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of employees' contribution to the Provident Fund and delayed payment of employer's contribution to Provident Fund. It is submitted that the appeal of the Department has been rejected by the Tribunal making a distinction between the two provisions which appear to be justified. It is urged that only the payment of employer's contribution to Provident Fund is covered by the provision of Section 43B of the Act and employees' contribution is squarely covered by the provisions of Section (2) (24) (x) read with Section 36(l)(va) of the Act. It is, thus, submitted that the Tribunal has rightly decided the present matter and was not obliged to follow a wrong decision earlier rendered in Ms. Sintra's case {supra). 13. In the case of Alom Extrusions Ltd. {supra), the Apex Court has dealt with the history of Section 43 B of the Act along with its proviso and referred to the fact that the amendments were made therein on account of difficulties felt in complying, with the provisions of the said section vis-a-vis the period prescribed under the Employees Provident Fund Act. Earlier by way of the first proviso the benefit of deduction was restricted only to tax, duty, cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead of deduction is separate under Section 43 B and Section 36 of the Act but on a broader reading of the amendments made to Section 43B repeatedly and the intention of Parliament, there appears to be sufficient justification for taking the view that the employees' and the employer's contribution ought to be treated in the same manner. In Alom Extrusions'case (supra), as pointed out earlier, the Supreme Court has not made any distinction between the two as similar problem of implementation would arise in both the cases, although specific issue was not raised therein; but both the Bombay High Court and the Punjab and Haryana High Court in the above referred cases after considering Alom Extrusions' case (supra) have answered the question treating the two contributions on the same footing. 17. Thus, I am inclined to respectfully agree with the view taken by the Bombay High Court and the Punjab and Haryana High Court." 12. It is also settled position of law that if there are contrary views of different High Courts and none of them is the Hon'ble Jurisdictional High Court, then the decision favourable to the assessee should be followed. This view is supported by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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