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TMI Blog2022 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... f Hon ble jurisdictional High Court in the case of Vijay Shree Ltd [ 2011 (9) TMI 30 - CALCUTTA HIGH COURT] fortifying the claim of the assessee, at the outset, we find that without going into the legal aspect of assessment order of the Ld. AO being erroneous in so far as it is prejudicial to the interest of the revenue, no prejudice is caused to the interest of the Revenue even if it is assumed that the order is erroneous. Presuming that the impugned order u/s 263 is upheld, the decision of Hon ble jurisdictional High Court in the case of Vijay Shree Ltd (supra) governs the assessment order arising from giving its effect on the treatment of allowability of claim for deposit of employee contributions towards provident fund and ESIC before the due date of filing of return u/s 139(1). We observe that where there is a delay in deposit of employees contribution to PF/ESIC as per the due date prescribed under the provisions of PF/ESIC Acts but the contribution is deposited before the due date of filing of return of income, no disallowance is called for u/s 36(1)(va) - Decided in favour of assessee. - ITA No. 95/Kol/2021 - - - Dated:- 24-2-2022 - SHRI RAJPAL YADAV, VICE-PRESID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 263 of the Act by taking the following grounds:- 1. That the Ld. Pr. CIT erred in law as well as in facts in treating and holding the order passed U/s. 143(3) of the Income Tax Act, 1961 Dt. 14-12- 2018 as passed by the Ld. AO, as erroneous in so far as prejudicial to the interests of the revenue in as much as in view of the facts and circumstances of the case, no such treatment was at all called for. 2. That the Ld. Pr. CIT erred in law as well as in facts in setting aside the order U/s. 143(3) Dt. 14-12-2018 to the file of the Ld. AO to pass an appropriate order and in directing the Ld. AO to decide as per CBDT Circular No. 22/2015 Dt. 17-12-2015, in as much as in view of the facts and circumstances of the case, no such directions were at all called for. 3. That the Ld. Pr. CIT erred in law as well as in facts in not considering the decision of the Jurisdictional Hon'ble Calcutta High Court in the case of CIT Vs. Vijay Shree Ltd. [224 Taxman 12(Cal.)(Mag.)] while holding the order U/s. 143(3) Dt. 14-12-2018 as erroneous in as much as in view of the facts and circumstances of the case, such act of the Ld. Pr. CIT is contrary to the Principles of law and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,01,420 30/04/2016 97,938 Total 3,06,962 Ld. Counsel submitted that all the amounts outstanding as on 31.03.2016 were deposited before the due date of filing of return u/s 139(1) of the Act. 6. Ld. Counsel further submitted that in the case of CIT v. Vijay Shree Ltd. (supra), the Hon ble jurisdictional High Court of Calcutta had upheld the allowability of deduction claimed on account of employees contribution to provident fund and ESIC paid on or before the due date of filing of return u/s 139(1) of the Act. It was submitted that in the case of the assessee company since most of the deposits have been made during the financial year itself and the outstanding amount as on 31.03.2016 has been deposited before the due to date of filing of return u/s 139(1) of the Act (as tabulated above), no disallowance is called for. Accordingly, Ld. Counsel strongly contended that the assessment order dated 14.12.2018 passed by the Ld. AO u/s 143(3) of the Act is not erroneous in so far as prejudicial to the interest of the revenue and that the impugned order u/s 263 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. CIT [2000] 243 ITR 83 (SC) wherein their Lordships have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii) Assessing Officer s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; [because AO has to discharge dual role of an investigator as well as that of an adjudicator] then in aforesaid any of the events, the order passed by the AO can be termed as erroneous order. Looking at the second limb as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue, one has to understand what is prejudicial to the interest of the revenue. The Hon ble Supreme Court in the case of Mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up with the present appeal. After hearing Mr. Sinha, learned 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. 13. From the decision above, we observe that where there is a delay in deposit of employees contribution to PF/ESIC as per the due date prescribed under the provisions of PF/ESIC Acts but the contribution is deposited before the due date of filing of return of income, no disallowance is called for u/s 36(1)(va) of the Act. 14. In the fact and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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