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TMI Blog2022 (2) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... C u/s 2(24)(x) r.w.s 36(1)(va) of the Income Tax Act, 1961 even when the same were paid before the due date of filling the return of income. 2. The appellant craves leave to add, alter, amend or delete any of the above referred ground of appeal." 3. At the time of hearing, no one appeared on behalf of the assessee. 4. Facts giving rise to the present appeal are that the assessee was engaged in the business of Staffing and Manpower supply, who filed its original return of income on 31.10.2019, declaring a total income of Rs. 25,65,467/- under normal provisions and Rs. 21,97,669/- under MAT provision i.e. u/s 115JB of the Income Tax Act, 1961 ("the Act"). The return was processed and the ADIT, CPC, Bangalore issued an intimation u/s 143(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (which appears to have been late withdrawn recently on 08.01.2016), we are of the opinion that the ITAT_s decision in this case was not correct. The assessee undoubtedly was entitled to claim the benefit and properly treat such amounts as having been duly deposited, which were in fact deposited within the period prescribed (i.e. 15 + 5 days in the case of EPF and 21 days + any other grace period in terms of the extent notification). As far as the amounts constituting deductions from employees_ salaries towards their contributions, which were made beyond such stipulated period, obviously the assessee was not entitled to claim the deduction from its returns." 9. I have heard the Ld.Sr.DR and perused the material available on record and gon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder MAT [(iii) disallowance of loss claimed. if return of the previous year for which set off of loss is claimed was furnished beyond the due date specified under sub-section (1) of section 139; (iv) disallowance of expenditure indicated in the audit report but not taken into account in computing the total income in the return; (v) disallowance of deduction claimed under sections 10AA, 80-IA, 80-lAB, 80-lB, 80-IC, 80-ID or section 80-IE, if the return is furnished beyond the due date specified under sub-section (I) of section 139; or (vi) addition of income appearing in Form 26AS or Form 16A or Form 16 which has not been included in computing the total income in the return:" 5.1.5 The above amount of Rs. 21,96,923 was added back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the due dates as prescribed under the said statute but before the due date of filing of the income tax return. The assessing officer while issuing an intimation u/s. 143(1) of the Income Tax Act made a disallowance of Rs. 21,96,923/-, as the same were deposited to respective fund by the appellant beyond the due dates as prescribed under the said statute. 5.1.3 During appeal proceedings, the appellant submitted that the Assessing Officer failed to appreciate that contributions to ESIC were made before the due date of filing of original return of income by the appellant and as such the same was allowable as deduction in the return of income and accordingly in line with interpretation laid down by the jurisdictional High Court. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, [ or] "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 sub-clause (x) of clause (24) of section 2 applies." 5.1.8 In the newly inserted Explanation 2 to Section 36(1)(va), it has been clarified that the provisions of section 438 shall not apply and shall be deemed never to have been applied for the purposes of determining the "due date" under this clause. Also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not add to, alter or amend the aforestated grounds of appeal, Ground No.3 is dismissed." 10. I find merit in the contention of Ld. Counsel for the assessee that the issue is covered by the judgement of Hon'ble Delhi High Court rendered in the case of AIMIL Ltd. (supra) wherein it has been held:- 17. "We may only add that if the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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