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TMI Blog2021 (4) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT] since the assessee had admittedly not paid the remittance of the employees' contribution to the provident fund and ESI within the dates prescribed under the respective Act, the assessee was not entitled to deduction U/s. 43B of the amounts deducted thereunder for and on behalf of the employees. - Decided against assessee. - ITA Nos. 1920 & 1921/Hyd/2019 - - - Dated:- 9-4-2021 - A. Mohan Alankamony, Member (A) For the Appellant : C.S. Subramanyam For the Respondents : A. Venkata Rao, DR ORDER Per A. Mohan Alankamony, AM The captioned appeals are filed by the assessee against the orders of the ld. CIT (A)-6, Hyderabad in appeal Nos. 10021 and 10166/2019-20/C/CIT(A)-6, dated 22/11/2019 passed U/s. 143(1) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s [2004] 269 ITR 285 (Ker.) and the decision of the Hon'ble Gujarat High Court in the case of CIT vs. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj.). 5. Further, this bench of the Tribunal in the case of Cafe D Lake Private Limited, Hyderabad vs. ITO in ITA No. 237/Hyd/2019 vide order dated 03/02/2021 had observed as under:- 6. We have heard the rival submissions and carefully perused the materials on record. We do not find any merit in the submission of the assessee on this issue. Section 36(1)(va) of the Act specifically provides that if the assessee remits the employee's contribution to Provident Fund/ESI within the due date mentioned in the relevant Act P.F Act, then the deduction will be allowable. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -- provided that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rannuation fund or any fund set up under the provisions of the Employees' State Insurance Act, 1948, or any other fund for the welfare of such employees shall be treated as an Income . Under section 36(1)(va) the assessee shall be entitled to the deduction in computing the income referred to in section 28 with respect to any sum received by the assessee from the employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employees' accounts in the relevant fund or funds on or before the due date . As per the Explanation to section 36(1)(va) for the purpose of clause (x), due date means the date by which the assessee is required as an employer to credit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 the assessee has not credit the employees' Contribution to the employees' account in the relevant fund or funds on or before the due date mentioned in the Explanation to section 36(1)(va), the assessee shall not be entitled to deduction of such amount in computing the income referred in section 28 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was not entitled to deduction U/s. 43B of the amounts deducted thereunder for and on behalf of the employees. 10. Similar view was vented by the Hon'ble Madhya Pradesh High Court in the case of B.S. Patel vs. DCIT reported in [2010] 326 ITR 457 (MP). 11. For the above stated reasons, We do not find any infirmity in the orders of the Ld. Revenue Authorities. Accordingly, We hereby confirm the Orders of the Revenue Authorities on these issues. Accordingly, Ground No. 1 is held against the assessee. 6. Following the ratio laid down by the above-mentioned decisions, I do not find any infirmity in the orders of the ld. Revenue Authorities. Accordingly, I hereby confirm the orders of the Ld. Revenue Authorities for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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