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TMI Blog2018 (8) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of law as well as after considering the order of this Tribunal in the case of Suzlon Energy Ltd. (Supra). Thus, the ground of appeal of the assessee is allowed for statistical purpose. - I.T.A. No. 418/Ahd/2018 - - - Dated:- 30-7-2018 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER And SMT MADHUMITA ROY, JUDICIAL MEMBER For The Appellant : Shri T. P. Hemani, A.R. For The Respondent : Shri Prasoon Kabra, Sr.D.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax(Appeals)-6, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)-6/349/16/17 dated 08.12.2017 arising in the matter of assessment order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limited company and engaged in the trading of laser engraving machine, cutting plotter, comgrave, blades and manufacturing of laser engraving machine, etc. The AO during assessment proceedings observed that the assessee failed to deposit the employee s contribution to PF/ESI within the due date as specified under the relevant Act, Rule or Notification issued thereunder. Therefore, the AO disallowed the same after having a reliance on the judgment of Hon ble Gujarat High Court, in the case of CIT vs. GSRTC reported in 41 taxmann.com 100 and added to the total income of the assessee. 5. Aggrieved, assessee preferred an appeal to ld. CIT(A) who confirmed the order of AO. Being aggrieved by order of Ld. CIT(A) assessee is in the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to its payment. He then files a computation chart indicating it to have paid above employees' PF/ESI contributions on 22.05.2009 and 28.05.2009 as against the due dates thereof following on 20.06.2009. The Revenue fails to dispute this factual position. We therefore quote this tribunal's co-ordinate bench decision in Kanoi paper Industries Ltd. vs. ACIT 75 TTJ 448 that the relevant date in such case is that of month of the actual payment of wages/salaries. We therefore rely on the above co-ordinate bench decision and direct the Assessing Officer to delete the impugned disallowance as well. 4. In effect thus while any delayed deposit of PF/ESI is to be disallowed, in terms of Hon'ble Gujarat High Court's judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees and in other cases, it should be the 10th day. The payment of Wages Act requires that the payment should be made within the period as specified. Thus, if the assessee can claim a deduction of the employee s contribution towards PF/ESI on the payment basis, then there is a possibility that the assessee will delay in the payment of wages to the workers. Thus, if the deduction for contribution towards PF / ESI is allowed to the assessee on the basis of date of payment for contribution towards PF / ESI, then the purpose of Wage Act, 1936 will be defeated. The ld. AR in his rejoinder submitted that no reference should be made to the payment of wages Act while deciding the issue under the Income Tax Act. 6. We have heard the rival c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the due date as per the explanation to section 36(1)(va) of the Act i.e. date by which the concerned assessee was required as an employer to credit employees' contribution to the employees' account in the Provident Fund under the Provident Fund Act and/or in the ESI Fund under the ESI Act. However, the ld. AR before us has submitted that the due date for depositing the employee s contribution towards PF/ESI should be seen from the date of the payment and not from the due date. In this regard, we note that the Jurisdictional Tribunal in the identical facts and circumstance in the case of Suzlon Energy Ltd.(supra) has restored this issue to the file of the AO for fresh adjudication. Therefore, respectfully following the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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