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TMI Blog2021 (11) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee. - ITA Nos. 191 & 192/CHD/2021 And ITA No. 190/CHD/2021 - - - Dated:- 20-10-2021 - Shri N.K. Saini, Vice President For the Assessee : Sh. Gaurav Mittal, Advocate. For the Revenue : Sh. Ashok Khanna, Addl. CIT. ORDER Through video Conferencing These three appeals by different assessees are directed against the separate orders of the CIT(Appeal), National Faceless Appeal Centre, (NFAC), Delhi dated 30.06.2021 in the case of M/s Sanchi Management Services Pvt. Ltd, Chandigarh and each dated 29.7.2021 in the cases of Sh. Raja Ram, Yamuna Nagar. 2. Since the issues involved are common in these appeals and the appeals were heard together, therefore, these are being disposed off by this common order for the sake of convenience and brevity. 3. The grounds raised by the assessee in ITA No. 191/Chd/2021 read as under:- 1. Because the action of making adjustment u/s 143(1) amounting to ₹ 3,80,079.00 for Provident Fund, ESI for the employer contribution depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd deemed to never have been applied for the purposes of determining the due date . Now the assessees are in appeal. 6. In was a common contention of the Ld. Counsels for the assessees that the issue under consideration is squarely covered vide order dated 28.9.2021 passed by the ITAT, Jodhpur Bench in ITA Nos.71 72/Jodh/2021 for the assessment years 2018-19 2019-20 in the case of M/s Ridhi Sidhi Mills (India) Pvt Ltd. Vs. DCIT, Banglore. 7. In his rival submissions, the Ld. DR strongly supported the orders of the authorities below and reiterated the observations made by the Ld. CIT(A) in the impugned orders. 8. I have considered the submissions of both the parties and perused the material available on record. 9. In the present cases, it is noticed that an identical issue having similar facts has already been adjudicated by the ITAT, Jodhpur Bench in the aforesaid referred to case, wherein the undersigned is author of the order dated 28.09.2021 and it has been held vide paras 7 to 10 in ITA in ITA Nos.71 72/Jodh/2021 as under:- 7. We have considered the submission of both the parties and perused the material available on record. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees Contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. In the light of the aforesaid discussion we do not accept the Ld. CIT(A) s stand denying the claim of assessee since assessee delayed the employees contribtion of EPF ESI fund and as per the binding decision of the Hon ble High Court in Vijayshree Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, 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 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act. 14. The issue is no more res integra in light of series of decisions rendered by the Hon ble Rajasthan High Court starting from CIT vs. State Bank of Bikaner Jaipur (supra) and subsequent decisions. 15. In this regard, we may refer to the initial decision of Hon ble Rajasthan High Court in case of CIT vs. State Bank of Bikaner Jaipur wherein the Hon ble High Court after extensively examining the matter and considering the various decisions of the Hon ble Supreme Court and various other High Courts has decided the matter in favour of the assessee. In the said decision, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act. 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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