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TMI Blog2022 (4) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... he Co-ordinate Bench of Tribunal in the case of The Continental Restaurant and Caf Company vs. ITO [ 2021 (10) TMI 843 - ITAT BANGALORE] and Adyar Ananda Bhavan Sweets India P. Ltd. [ 2021 (12) TMI 558 - ITAT CHENNAI] Consequently, we see no error in the order of the CIT(A) and therefore decline to interfere. Appeal of the Revenue is dismissed. - I.T.A. No. 2581/DEL/2018 - - - Dated:- 24-3-2022 - Kul Bharat , Member ( J ) And Pradip Kumar Kedia , Member ( A ) For the Appellant : Ananya Kapoor , Adv. For the Respondents : Ishtiyaque Ahmad , CIT ORDER Per Pradip Kumar Kedia , AM The captioned appeal has been filed at the instance of the Revenue against the order of the Commissioner of Income Tax (Appeals)-XXXV, Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed in the respective Acts (PF ESI Act). (iii) On the other hand, the Assessing Officer has not found the expenditure allowable u/s. 43B of the I.T. Act. Employees contribution to PF and ESI is deemed as income of the employer u/s. 2(24)(x), and the same is allowable as deduction u/s. 36(1)(va) of the I.T. Act. Section 36(1)(va) stipulates that such payment by employer is allowed only if such sum is credited to the employee's account in the relevant fund or funds on or before the due date under the relevant Act. The Assessing Officer has concluded that section 36(1)(va) is applicable in respect of employee's contribution to PF and ESI, and if the same is not deposited within the due date prescribed under the respective Acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 01.04.2004, the second proviso to section 43B specified the conditions for allowability u/s. 36(1)(va). To be allowable, cash payments were required to be made on or before the due date prescribed u/s. 36(1)(va), and for payments made other than in cash, the sum has to be realized within 15 days from the due date. However, the second proviso to section 43B was omitted by Finance Act, 2003, w.e.f. 01.04.2004. This had led to the controversy in respect of the allowability of such sums. The appellant's contention is that after deletion of second proviso to section 43B w.e.f. 01.04.2004 such payments are now covered under first proviso to section 43B, which allows deduction for payments of such sums on or before the due date of fill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute. 5. On perusal of the records, we observe that the Assessing Officer has made the impugned addition on the ground that the assessee has deposited employee's contribution towards Provident Fund and ESI amounting to ₹ 3,57,13,697/- after due date as prescribed under the relevant Act/Rules in breach of Explanation 5 to Section 43B of the Act. The Assessing Officer accordingly resorted to the additions under Section 36(1)(va) read with Section 2(24)(x) of the Act. 6. It is the case of the assessee before lower authorities that it has deposited the employee's contribution in EPF and ESI before the due date of filing of return of income stipulated under Section 139(1) of the Act. 7. We find that the identical iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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