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TMI Blog2021 (12) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Decided in favour of assessee. - ITA No.412/Bang/2021 - - - Dated:- 27-12-2021 - Shri Chandra Poojari, Accountant Member And Shri George George K, Judicial Member For the Revenue : Shri H Ananda, Addl.CIT (DR) For the Assessee : Smt. Suman Lunkar, C.A ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER This appeal by the assessee is directed against the order of the NFAC dated 16/10/2019 for the asst. year 2018-19. 2. The assessee has raised following grounds of appeal:- 1. The learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre has erred in passing the appellate order in the manner passed. The appellate order as passed is void-ab-initio and bad in law and is liable to be quashed. 2. The learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre has erred in dismissing the appeal filed by the appellant without following the binding decision of jurisdictional High Court and honourable Apex court. The order passed without following the legal precedence is bad in law and therefore liable to be quashed. 3. The learned Commissioner of income-tax (Appeals), National Faceless Appeal Centre should hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at least the addition made to the income be deleted. 6. The issue in grounds are with regard to disallowance of sum of ₹ 2,19,930/- being employees contribution to PF and ESI which has been deposited beyond the due date prescribed under relevant Act and deposited within due date by filing the return on u/s 139(1) of the Act. 7. While processing the return of income u/s 143(1) disallowing a sum of ₹ 2,19,930/- u/s 36(1)(va) r.w.s 2(24)(x) of the Act. On appeal, the CIT(A) confirmed the same. Against this assessee is in appeal before us. 8. We have heard both the parties and perused the materials on record. In this case, the said amount has been remitted to the Government beyond the date stipulated under the relevant Act. However, the same was deposited within the due date by filing the return of income u/s 139(1) of the Act. 9. The assessee made a sum of ₹ 2,19,930/- beyond the time prescribed under the relevant Act. Now the claim of assessee is that the above payment has been made towards PF beyond due date prescribed under the relevant Act, however, the same was made within due date of filing the return of income u/s 139(1) of the Act for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular rate and the contribution payable by the assessee shall be equal to the contribution payable by the employer. 18. Paragraph-30 of the PF Scheme provides for payment of contributions. Sub-para(1) of paragraph-30 states that the employer shall, in the first instance, pay both the contribution payable by himself (in this Scheme referred to as the employer's contribution) and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member (in this Scheme referred to as the member's contribution). 19. From bare perusal of sub-para(1) of paragraph-30, it is clear that the word contribution is used not only to mean contribution of the employer but also contribution to be made on behalf of the member employed by the employer directly. 20. Paragraph-38 of the PF Scheme provides for Mode of payment f contributions. As provided in sub-para(1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act within fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. If that provision is read along with the first proviso of the said section which was inserted by the Finance Act, 1987, which came into effect from April 1, 1988, the letters numbered as clause (a), or clause (c) or clause (d) or clause (e) or clause (f) are omitted from the above proviso and therefore deduction towards the employees contribution paid can be claimed by the assessee. The Explanation to clause (va) of section 36(1) of the Income-tax Act further makes it very clear that the amount actually paid by the assessee on or before the due date applicable in this case at the time of submitting returns of income under section 139 of the Act to the Revenue in respect of the previous year can be claimed by the assessees for deduction out of their gross income. The above said statutory provisions of the Income-tax Act abundantly makes it clear that, the contention urged on behalf of the Revenue that deduction from out of gross income for payment of tax at the time of submission of returns under section 139 is permissible only if the statutory liability of payment of provident fund or other contribution funds referred to in clause (b) are paid within the due date under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibution Company of A.P. Ltd. [2016] 160 lTD 432 (Visakhapatnam - Trib.) 14. Nuzivedu Swati Coastal Consortium vs. ITO [2015] 62 taxmann.com 258 (Hyderabad - Trib.) 15. DCIT vs. Teesta Valley Tea Co. Ltd. [2017] 85 taxmann.com 301 (Kolkata - Trib.) 13. The ld.DR contention is that as per sec.43B(b) of the Income-tax Act and explanatory notes to Finance Act 1983, that Employees Contribution was never intended to be covered by sec.43B. This has been reiterated and reinforced through Explanation 5 to sec.43B and Explanation 2 to 36(1)(va) inserted by Finance Act 2021. If it was the intention of the legislature expressly made clear in the Finance Act 2021, through the explanatory notes, it would necessarily to be held that Explanation 5 to sec. 43B and Explanation 2 to sec.36(1)(va) would apply to all pending matters as on date. 14. We find no merit in the argument of the ld.DR since the explanation as provided in Finance Act 2021 prescribes that the amendment in both sec.36(va) as well as 43B by inserting corresponding explanation that although impugned PF comes in the form of provision and the same is applicable from 1/4/2021 onwards only. In the present case we are conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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