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TMI Blog2022 (3) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... va). 4. The learned CIT(A) has erred in not taking into consideration that ESI and PF payments were made within the stipulated time and that there was no delay in payment of ESI and PF. 5. The learned CIT(A) has erred in not taking into consideration that ESI and PF payments have been made in full and there is no due. 6. The learned CIT(A) erred in law by adding TDS amount on account of mismatch. 7. The learned CIT(A) has erred in not taking into consideration that the TDS amount was filed as per 26AS and therefore there is no question arising for mismatch of amounts. 8. The learned CIT(A) ought to have appreciated that the issue with regard to ESI and PF payments is covered by the jurisdictional High Court judgment in the case of CIT vs. Sabari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the employer to make payment of contribution to provident fund or any other fund till the "due date" applicable for furnishing the return of income under sub-section (1) of section 139 of the IT Act in respect of the previous year in which the liability to pay such sum was incurred and the evidence of such payment is furnished by the assessee along with such return. In short, this provision states, notwithstanding anything contained in any other provision contained in this Act, a deduction otherwise allowable in this Act in respect of any sum payable by the assessee as an employer by way of contribution to any fund such as provident fund shall be allowed if it is paid on or before the due date as contemplated under Section 139(1) of the IT Act. This provision has nothing to do with the consequences, provided for under the PF Act/PF Scheme/ESI Act, for not depositing the "contribution" on or before the due dates therein. 16. In the present case, admittedly, though the employer did not deposit the contribution, within the stipulated time, as contemplated by paragraph-30 of the PF Scheme or before the due date under the provisions of the PF scheme/Act, he deposited the contribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees contribution on or before the due date, contemplated under the provisions of the PF Act and the PF Scheme, that would have to be treated as income within the meaning of Section 2(24)(x) of the IT Act and in which case, the assessee is liable to pay tax on the said amount treating that as his income, deserves to be rejected. 22. With respect, we find it difficult to endorse the view taken by the Gujarat High Court. We agree with the view taken by this Court in W.A. No. 407712013. 23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs. 8. Further, he relied on the judgment of Hon'ble Karnataka High Court in the case of CIT v. Sabari Enterprises [2008] 298 ITR 141 (Kar.) has held as under: "This clause is inserted by the Finance Act with effect from April 1, 1988. The Explanation to this clause is read very carefully. "Due date" has been explained stating that: means the date by which the assessee is required as an employer to credit contribution to the employees' account in the relevant fund under any Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Co. v. CIT (Asst.) [2002] 257 ITR 338 (SC) in respect of applicability of section 43B(b) and also omission of clause (a) or (c) or (d) or (e) or (B referred to above occurred in the first proviso to section 43B, supports the case of the assessees and also relevant paragraphs extracted from Allied Motor's case [1997] 224 ITR 677 and paragraph 59 referred to supra in this judgment from the Finance Bill with all fours supports the case of the assessee/respondents. Therefore, we have to answer the substantial question of law No. 1 framed by this court in these appeals at the instance of the Revenue against them, viz., in the negative. Accordingly, we answer the substantial question No. 1 framed in these appeals in the negative. 10. Further he relied on the following judgments:- 1. In Re-Cognizance for Extension of Limitation-Supreme Court of India in M.P. No. 665/2021 in SMW(C) No. 3/2020 dt. 19/7/2021. 2. Salzgitter Hydraulics Pvt. Ltd. Vs. ITO [2021] 128 taxman.com 192 [Hyderabad Tribunal] 3. M/s. Crescent Roadways Pvt. Ltd. Vs. Dy CIT-ITA No. 1952/Hyderabad/2018 4. M/s. Mahadev Cold Storage Vs. Jurisdictional AO-ITA No. 41 & 42/Agra/2021 5. M/s. Essae Teraoka (P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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