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TMI Blog2021 (9) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... second proviso to section 43B of the Income-tax Act, 1961, omitted by the Finance Act, 2003, with effect from April 1, 2004, was clarificatory in nature and was to operate retrospectively. Thus, the assessee, for the assessment year 2003-04, was entitled to deduction in respect of the employer's and employees' contributions to the employees' State Insurance and provident fund as the contributions had been deposited prior to the filing of the return under section 139(1) - Decided in favour of assessee. - ITA No. 137/Chd/2021 - - - Dated:- 23-8-2021 - N.K. Saini, Vice President And R.L. Negi, Member (J) For the Appellant : Navneet Sehgal, CA For the Respondents : Ashok Khanna, Addl. CIT ORDER Per N. K. Saini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed the sum of ₹ 1,09,620/- on account of delayed payment of Employees' Contribution to ESI Provident Fund, by invoking the provisions of Section 36(1)(va) of the Act. 4. Being aggrieved the assessee carried the matter to the Ld. CIT(A) and submitted that the Employees' Contribution towards Provident Fund and ESI had been deposited with in the time limit prescribed under section 139(1) of the Act, which is allowable as per the provisions of 43B of the Act. However the Ld. CIT(A) did not find merit in the submissions of the assessee and sustained the addition made by the A.O. The reliance was placed on the judgment of Hon'ble Gujarat High Court in the case of CIT Vs. State Road Transport Corporation reported at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of M/s. New Time Contractors and Builder (P) Ltd. Vs. DCIT wherein the relevant findings have been given in para 10 and 11 of the said order which read as under: (10) We have considered the submissions of both the parties and perused the material available on record. In the present case, it is an admitted fact that there was delay in depositing the employees' contribution of provident fund and ESIC. However, it is accepted by the AO that the deposit was made before filing of the return of income on 27.09.2013. (11) On a similar issue the Hon'ble Jurisdictional High Court in the case of CIT vs. Hemla Embroydery Mills (p.) Ltd.(supra) held as under: The second proviso to section 43B of the Income-tax Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 139. On a conjoint reading of section 36(va) and section 43B it is obvious that earlier section 43B made reference to the due date as prescribed under section 36(1)(va). There was a conflict between the first and the second provisos and the second proviso was deleted. The benefit of this amendment must be extended to the employees' contribution also. It has further been held as under: that when the employer had not deposited the contribution within the time prescribed under the Acts, he may face criminal prosecution. He may also become liable to pay interest or penalty. However, that was no reason to deny him the benefit of section 43B, which starts with a non obstante clause and which clearly lays down that the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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