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TMI Blog2021 (12) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming the action of A.O. in making an addition of Rs. 9,49,894/- u/s 36(1)(va) of the I.T. Act 1961 for delayed deposit of employees contribution of EPF and ESI but paid before the due date of filing of return is unjust, illegal, arbitrary and against the facts and circumstances of the case." ITA No.-1011/Del/2021 "1. That the Impugned order of Ld. CIT(A) National Faceless Appeal Centre, Delhi u/s 250 of Income Tax Act, 1961 for the assessment year 2018-19 dated 23-07-2021 is bad in law and illegal on the facts and in the circumstances of the case and legal position. 2. That on the facts and circumstances of the case and the legal position, the learned CIT(A) has erred in the confirming the addition of Rs. 3,10,435/- on account of employee's contribution towards PF/ESI deposited with the authorities after the due date but before the due date of filing the return of the Income; whereas the same is allowable in view of various judicial decisions. 3. That on the facts and circumstances of the case and the legal position, the learned CIT(A) has erred on relying upon the amendments made by the Finance Act 2021, i. in clause (va) of sub-section 1 of Section 36 of the Act by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort) against these impugned appellate orders of the respective Ld. CIT(A). At the time of hearing before us, it was submitted on behalf of the assessees (Appellants) that the issue in dispute is covered in favour of the assessee(s) by order of Co-ordinate Bench of ITAT, Delhi in the case of DCIT vs. Planman HR (P) Ltd. in ITA No. 5152/Del/2017. It was further brought to our attention that the issue in dispute is also covered in favour of the assessee(s) by numerous other orders of Hon'ble High Court, and ITAT; such as, the following: 1. Order dated 10.09.2018 vide ITA No. 983/2018 in the case of ITO vs Aimil Ltd. (2010) 321 ITR 508 (Delhi) 2. CIT v. Nipso Polyfabriks Ltd. [2013] 350 ITR 326 3. CIT vs. Merchem Ltd. 378 ITR 443 (Kerala) 4. Sagun Foundry (P.). vs. CIT[2017] 291 CTR 557 (Allahabad) 5. CIT vs. Bharat Hotels Ltd. [2019] 103 taxmann.com 295/410 ITR 417 (Delhi) 6. Order dated 01.07.2021 in the case of Raodways Private Limited [TS-510- ITAT-2021 (HYD)], ITAT, Hyderabad. 7. Order dated 31.05.2021 of Delhi Bench of ITAT in ITA No. 1626/Del/2020 in the case of Azamgarh Steel & Power Pvt. Ltd. 8. Salzgitter Hydraulics Pvt. Ltd. vs. ITO 128 taxman.com 192[Hydera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iks Ltd. (supra), CIT vs. Merchem Ltd. (supra), Sagun Foundry (P.). vs. CIT(supra), CIT vs. Bharat Hotels Ltd. (supra), Raodways Private Limited (supra), Azamgarh Steel & Power Pvt. Ltd. (supra), Salzgitter Hydraulics Pvt. Ltd. vs. ITO (supra), M/s Crescent Roadways Pvt Ltd. vs. Dy. CIT - (supra), M/s Mahadev Cold Storage (supra), M/s Essae Teraoka (P.) Ltd. vs. DCIT- (supra), Anand Kumar Jain vs. ITO (supra), and Value Momentum Software Services Private Limited vs. DCIT.(supra), Mohan Ram Chaudhary vs. ITO. (supra), Bata India Ltd. vs. DCIT (supra), DCIT vs. Eastern Power Distribution Company of A.P. Ltd. (supra), Nuzivedu Swati Coastal Consortium vs. ITO (supra), Yogi Ji Technoequip Pvt. Ltd. vs. DCIT (supra), DCIT vs Teesta Valley Tea Co. Ltd. (supra), M/s Jana Urban Services for Transformation Pvt. Ltd. vs. The Dy. Commissioner of Income Tax (supra), Mohan Ram Chaudhary vs. The ITO (supra), AKS Equipments (P) Ltd. vs. DCIT(supra), Amandeep Singh Khurana (supra). No facts and circumstances, or order legal precedents have been brought to our attention from either side to persuade us to take a view against the assessee in the matters under dispute in the present appeals before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (2010) 321 ITR 508 has held that the assessee can get the benefit of deduction if the payment is made before the return is filed, as per the principle laid down by the Hon'ble Supreme Court in the case of CIT vs. M/s Vinay Cement Ltd. 213 ITR 268. I find that the appellant has paid the Employee's contribution to provident fund at Rs. 6,98,27,223/- ESIC of Rs. 1,29,88,031/- and professional tax of Rs. 57,47,336/- out of Rs. 62,37,986/- aggregating to Rs. 8,85,62,590/- out of Rs. 8,90,53,240/- disallowed in the assessment order before the due date of furnishing the return u/s 139(1) of the I.T. Act, 1961. In view of the legal position on the issue and the order of the Hon'ble ITAT, Delhi in the appellant's own case, the company is eligible for deduction of Rs. 8,85,62,590/- out of the disallowance made by the AO at Rs. 8,90,53,240/- by invoking provisions of Section 36(1)(va) read with 2(24)(x) and 43B of the Act. The AO is, therefore, directed to delete the addition of Rs. 8,85,62,590/-. This ground is partly ruled in favour of the appellant." 13. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 14. The ld. DR heavily relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income-tax Act, 1961?" 3. Factually, it has been found by the Commissioner of Income Tax (Appeals) ['CIT(A)'] as well as by the ITAT, concurrently, that the payment by the Assessee employer towards the employees' contribution of the Provident Fund was made before the date of filing of the return by the Assessee and thus, in terms of the decision of this court in Commissioner of Income Tax v. AIMIL Ltd. [2010] 321 ITR 508 (Del), it was within the 'due date' for the purpose of Section 36 (1) (va) of the Income Tax Act, 1961 ('Act') read with Section 43 (B) thereof. 4. Learned counsel for the Revenue attempted to persuade this Court to reconsider the correctness of its decision in Commissioner of Income Tax v. AIMIL Ltd. (supra). The Court finds that the decision has consistently been followed in later decisions of this Court and even by the Allahabad High Court in Sagun Foundry Private Limited v. Commissioner of Income Tax, Kanpur (2017) 291 CTR (All) 557 and the Karnataka High Court in M/s Essae Teraoka Pvt. Ltd. v. Deputy Commissioner of Income Tax [2014] 366 ITR 408 (Kar). 5. Accordingly, the Court is not persuaded to frame the question of law as urged by the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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