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TMI Blog2021 (2) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... P.F/ESI while as Section 43B of the Act refers to employer's contribution to P.F. Hence Section 43B of the Act has no application with respect to employee's contribution to P.F./ESI. Accordingly Section 43B of the Act will not override the provisions of Section 36(1)(va) of the Act with respect to employee's contribution to provident fund. It is pertinent to mention that though employee's employer's contribution to P.F/ESI are remitted by the employer into the Government treasury, they are separate and distinct for which independent provisions have been cast under the Act. Employee's contribution to P.F./ESI, is nothing but appropriation of a portion of the salary which is legitimately due to the employee and remitted by the employer in the Government treasury on behalf of the employee in accordance with the provisions of the relevant P.F., Act. -We hereby confirm the Orders of the Revenue Authorities on these issues. Accordingly, Ground No. 1 is held against the assessee. Disallowance u/s. 40(a)(ia) - AO had disallowed 30% as allowable deduction because the assessee has not deducted tax at source as per the provisions of the Act towards audit fees a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) confirmed the order of the Ld. AO by observing as under with respect to addition made towards non remittance of employee's contribution to provident fund and ESI.:- 6.3. The submissions of the appellant have been carefully considered. There is no dispute that Employee's contribution to PF, has been made after the statutory due date as prescribed by the Provident Fund Act and ESI Act. The appellant has submitted that if the payments are made before the filing of return of income, they should be allowed. However, it should be noted that section 43B(b) refers to the 'Employer's contribution' to the Provident Fund or ESI and not 'Employee's contribution' to Provident Fund or ESI. This distinction has been understood in light of the CBDT Circular No. 22/2015 dated 17/12/2015. In this background, the contention of the appellant is not accepted as it is not allowable as per Income Tax Act. The disallowance made by the Assessing Officer is upheld. 5. Before us, the Ld. AR submitted that the assessee had remitted the employee's contribution towards PF and ESI which was deducted from their salary within the due date of filing the return under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return. 8. Thus Section 36(1)(va) of the Act refers to employee's contribution to P.F/ESI while as Section 43B of the Act refers to employer's contribution to P.F. Hence Section 43B of the Act has no application with respect to employee's contribution to P.F./ESI. Accordingly Section 43B of the Act will not override the provisions of Section 36(1)(va) of the Act with respect to employee's contribution to provident fund. It is pertinent to mention that though employee's employer's contribution to P.F/ESI are remitted by the employer into the Government treasury, they are separate and distinct for which independent provisions have been cast under the Act. Employee's contribution to P.F./ESI, is nothing but appropriation of a portion of the salary which is legitimately due to the employee and remitted by the employer in the Government treasury on behalf of the em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction of such sum towards the employees' contribution if it is deposited in the accounts of the concerned employees and in the concerned fund such as provident fund, employees' State insurance contribution fund etc., provided the sum is credited by the assessee to the employees' accounts in the relevant fund or funds on or before the due date under the Provident Fund Act, Employees' State Insurance Act, Rule, Order or Notification issued thereunder or under any standing order, award, contract or service or otherwise. There is no amendment in section 36(1)(va) and even the Explanation to section 36(1)(va) is not deleted and is still on the statute and is required to be complied with. Merely because the second proviso to section 43B which provided that even with respect to the employer's contribution (section 43(b)), the assessee was required to credit the amount in the relevant fund under the Provident Fund Act or any other fund for the welfare of the employees on or before the due date under the relevant Act is deleted. It cannot be said that section 36(1)(va) is also amended or the Explanation to section 36(1)(va) has been deleted or amended. Therefore, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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