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TMI Blog2021 (12) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ESI u/s 36(1)(va) of the Act for remitting the dues beyond the due date prescribed under the respective Statutes. 2. The assessee is carrying on business under the name and Style "C.K. Enterprises". In both the years under consideration, the assessee had remitted employees PF & ESI belatedly, i.e., beyond the due date prescribed in the respective statutes. However, these payments were made before the due date for filing return of income prescribed u/s 139(1) of the Act and hence the assessee claimed these payments as deduction. The details of payments so remitted belatedly are tabulated below:- Details of Payments AY 2017-18 AY 2019-20 Employees PF 47,01,453 69,37,752 Employees ESI 27,15,844 15,91,691 3. While processing re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause (va), by inserting Explanation-2 which reads thus: "Explanation 2.--For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the "due date" under this clause;'." The Finance Act, 2021 also amended section 43B by inserting Explantion-5 thereto which reads thus: "Explanation 5.--For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of subclause (x) of clause (24) of section 2 applies." According to the CIT(A), by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en applied to a sum received by the assessee from any of his employees to which the provisions of sub clause (x) of clause (24) of section 2 applies. 4. The CIT(A) was of the view that Section 36(1)(va) and section 43B(b) operate on totally different footings and have different parameters for due dates, i.e., employee's contribution is linked to payment before the due dates specified in the respective Acts or Funds and employer's contribution is linked to the payment before the prescribed due date for filing of return u/s.139(1) Income Tax Act, 1961. The result of any failure to pay within the prescribed dates also leads to different results. In the case of employee's contribution, any failure to pay within the prescribed due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid on or before the due date for filing return of income u/s.139(1) of the Act, has been decided in favour of the Assessee in the following decisions, holding that there cannot be any such disallowance: M/s Mahadev Cold Storage vs Jurisdictional AO - ITA.No.41 & 42/Agra/2021 M/s Essae Teraoka (P.) Ltd vs DCIT - [2014] 43 taxmann.com 33 (Karnataka) Anand Kumar Jain vs ITO - ITA NO 4192/MUM/2012 ValueMomentum Software Services Private Limited vs. DCIT I.T.A. No. 2197/HYD/2017 [Assessment Year: 2013-14] dated19.05.2021 Mohan Ram Chaudhary vs. ITO ITA No. 51&54-55/J0odh/2021 [Assessment Year: 2018-19} dated 28.09.2021 ITA No.359/Bang/2021 7. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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