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TMI Blog2019 (7) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... by CIT(A) in the light of decision of Hon ble Bombay High Court in the case of CIT vs Ghatgepatil Transport Ltd (supra). Therefore, we are inclined to uphold the findings of CIT(A) and dismiss appeal filed by the revenue. - ITA No. 3123/Mum/2018 - - - Dated:- 26-6-2019 - Shri G Manjunatha (Accountant Member) And Shri Ravish Sood (Judicial Member) For the Appellant : Shri Manoj Kumar Singh For the Respondent : Shri Rushabh Mehta ORDER PER G MANJUNATHA, AM : This appeal filed by the revenue is directed against the order of the CIT(A)-20, Mumbai dated 16-02-2018 and it pertains to AY 2014-15. The revenue has raised the following grounds of appeal:- Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition made by the A.O. considering the income received by the assessee from his employees amounting to ₹ 48,01,342/- as per section 2(24)(x) r.w.s 36(i)(va) of the I T Act, 1961 which was not deposited by the assessee in due time by considering the same to be a allowable deduction under section 43 B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l High Court in the cases of CIT vs Hindustan Organics Chemical Ltd. 366 ITR 1 (Bom) and in the case of CIT vs. Ghatge Patil Transport Ltd. 368 ITR 749 (Bom) held that both the employee's and employer's contribution are covered under amendment to section 43B and the judgement of Supreme court in the case of CIT vs. Alom Extrusion Ltd. (2009) 319 ITR 306 (SC). The Hon'ble Bombay High Court in the case of Hindustan Organics Chemical Ltd. (supra) held as under : 6. On a plain reading of the above provisos, it became ex-fade clear that the Assessees -employers were entitled to deductions only if the contributions to any fund for the welfare of the employees stood credited on or before the due date given in the relevant Act. 7. However, the second proviso once again created further difficulties for the Assessees -employers. Therefore, Industry once again made representations to the Ministry of Finance who, after taking cognizance of the difficulties, inserted an amendment vide Finance Act, 2003 which came into force with effect from 1st April 2004. In other words, with effect from ht April 2004, two changes were made in section 43B v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one hand and contribution to the employees' provident fund, superannuation fund and other welfare funds on the other. These deductions being claimed in the return of income filed for the Assessment Year 2006-07, the amendments to Section 43B which came into force with effect from 1st April 2004 would have clearly applied to the Assessee's case. In this view of the matter also, we find that the ITAT wasvrd 8 ITXA399/12 fully justified in deleting the addition of ₹ 1,82,77,138/- on account of delayed payment of provident fund of employees' contribution. Similarly, the jurisdictional High Court in the case of Ghatge Patil Transports (Supra) held as under: 11. The second proviso resulted in implementation problems and which led to deletion of the second proviso in the Finance Act, 2003 and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds like employees' provident fund, superannuation. Fund and other welfare funds. The first proviso by Finance Act, 2003 was made applicable with effect from April I, 2004 and the assessee would argue that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso thereto has been added which was restricted to tax, duty, cess or fee excluding labour welfare. In view thereof, the second proviso as follows came to be inserted:- Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid during the previous year on or before the due date as defined in the Explanation below clause (va) of subsection (1) of section 36. The second proviso was further amended with effect from 1st April, 1989 to read as under- Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid in cash or by issue of a cheque or draft or by any other mode on or before the due date as defined in the itxalOQ2-12+l Explanation below clause (va) of sub-section (1) of section 36, and where such payment has been made otherwise than in cash, the sum has been realised within fifteen days from the due date. 14. From a reading of above, it is clear that the employerassessee would be entitled to deduction only if the contribution to the employee's welfare fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, then the same constitute income within the meaning of section 2(24)(x) r.w.s. 36(1)(va) of the I.T. Act, 1961. Consequently, the same cannot be allowed as deduction u/s 43B of the Act. 5. The Ld.AR for the assessee submitted that this issue is squarely covered in favour of the assessee by the decision of Hon ble Bombay High Court in the case of CIT vs Ghatgepatil Transport Ltd (supra) where the High Court, by following the decision of Hon ble Supreme Court in the case of CIT vs Alom Extrusions Ltd (supra) held that section 43B is applicable to both, employees and employer s contribution and if such contribution is remitted on or before due date of filing return of income u/s 139(1), then the same is allowable u/s 43B of the I.T. Act, 1961. 6. We have heard both the parties, perused the material available on record and gone through the order of authorities below. There is no dispute with regard to the fact that the assessee has remitted employees contribution to PF beyond the due date prescribed under the provisions of Employees Provident Fund Miscellaneous Act, but such payment has been remitted on or before due date of filing return of incom ..... 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