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TMI Blog2021 (8) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... AN NIGAM LTD AND RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD [ 2014 (1) TMI 1085 - RAJASTHAN HIGH COURT] as been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. Thus addition by way of adjustment while processing the return of income u/s 143(1) so made by the CPC towards the delayed deposit of the employees s contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) - Decided in favour of assessee. - ITA. No. 05/JODH/2021, ITA. No. 28 & 29/JODH/2021, ITA. No. 43/JODH/2021 - - - Dated:- 12-8-2021 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Raksha Birla (C.A.) Shri Mohit Soni (C.A.), Shri Rajendra Jain (Adv.) For the Revenue : Miss Kajal Singh (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. These are four appeals filed by the assessees again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut was also made disregarding the binding decision of Hon'ble Jurisdictional High Court. 6. It was submitted that the payment made in respect of ESI on or before due date of filing of return and in light of binding decision of Hon'ble Jurisdictional High Court, the CPC while processing the return u/s 143(1) should have allowed the deduction as claimed by the assessee. The Hon'ble Jurisdictional High Court and other Hon'ble High Courts in various cases has held that the payment made on or before due date of filing of return of income, no disallowances can be made. In support, reliance was placed on the following decisions:- CIT vs. State Bank of Bikaner and Jaipur (2014) 363 ITR 70 CIT vs. Jaipur Vidyut vitran Nigam Ltd (2014) 363 ITR 307 CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd (2014) 366 ITR 163 7. It was submitted that in the latest decision of Hon'ble Rajasthan High Court in CIT Vs. Rajasthan State Beverages Corporation Ltd. / Rajasthan State Ganganagar Sugar Mill (2017) 250 Taxman 32 (Raj), the Hon'ble High Court has once again held that the employees' contributions to the PF, ESI, etc. made within the due date of filing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh submitted that there has been a delay in deposit of employees contribution towards PF and ESI by the assessee and as the same has not been deposited within the stipulated time frame as prescribed by the relevant statue, the same has been rightly disallowed in terms of section 36(1)(va) while processing the return of income u/s 143(1) and has been rightly confirmed by the ld CIT(A) following the decisions of the Hon ble Delhi High Court in case of CIT vs Bharat Hotels Ltd, Hon ble Gujarat High Court in case of PCIT vs Suzlon Energy Ltd 115 Taxmann.com 340, Hon ble Kerala High Court in case of CIT vs Merchem Ltd 61 Taxmann.com119 and Hon ble Madras High Court in case of Unifac Management Services (India) Pvt Ltd vs CIT 409 ITR 225. The ld DR has thus relied on the findings of the lower authorities. 13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees s contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under Section 139 is permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon ble Rajasthan High Court. 19. In the result, the appeal of the assessee is allowed. ITA No. 28 29/JODH/2021 20. Heard ld AR, Raksha Birla, who appeared on behalf of the assessee and ld. DR, Kajal Singh who appeared on behalf of the Department. 21. Both the parties submitted that the facts and circumstances of the case in both these appeals are exactly identical to facts and circumstances of the case in ITA No. 05/JODH/2021 and therefore, contentions as advanced by the respective parties in ITA No. 05/JODH/2021 may be considered. 22. Heard both the parties and pursued the material available on record. Admittedly and undisputedly, the employees s contribution amounting to ₹ 7,37,681/- for A.Y 2018-19 and ₹ 393,385/- for A.Y 2019-20 towards ESI and PF which have been collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Therefore, our findings and directions contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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