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TMI Blog2015 (6) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... find any infirmity in the order of the CIT (A) and we uphold the same. It is ordered accordingly. Ground No.1 is rejected. Deduction of payment of employees contribution towards provident fund and ESI - HELD THAT:- We find that this issue is covered in favour of the assessee by the judgment of Hon'ble jurisdictional High Court in the case of CIT vs. AIMIL Limited,[ 2009 (12) TMI 38 - DELHI HIGH COURT] and also the Hon'ble Supreme Court in the case of CIT vs. Vinay Cements Limited [ 2007 (3) TMI 346 - SC ORDER] - Deduction of payment of employees contribution towards provident fund and ESI cannot be disallowed under section 43B, if paid before the due date of filing the return. In view of this fact, we reject this ground. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee, being aggrieved, is in appeal before us. 6. In the Ground No.1, the revenue has challenged whether the CIT (A) has erred in deleting the disallowance of Rs.63,75,900/- u/s 10B without appreciating the fact that assessee is not eligible for deduction on entire receipts. 7. The AO noticed that during the relevant financial year, the assessee had included in its export turnover the following amounts :- (i) Software development and maintenance service Rs.5,90,55,954/- (ii) International recruitment service Rs.2,67,53,551/- The Assessing Officer held that these were two different activities. The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both factually and legally, that the business of the assessee cannot be held to be offering IT enables services, so as to make it eligible for exemption u/s 10A. Consequently, the operations conducted from STPI, Noida are held to be ineligible for benefit of deduction u/s 10A. 8. On appeal, the ld. CIT (A) observed that for the assessment year 2007-08, the Tribunal had allowed the claim of the assessee u/s 10B in full and included in the export turnover, the receipt from international recruitment service. The ld. CIT (A) also noticed that the Tribunal observed, as per Section 10A Explanation 2 clause (b), any customize electronic data is qualified for treatment as a computer software on whose export deduction would be admissible to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at same is pending with the Hon'ble Supreme Court and also the fact that the Hon'ble ITAT, Mumbai after having discussion of the above judgement of the Hon'ble High Court (AIMIL Ltd.) in the case of ITO v. LKP Securities (ITA 1093/Mum/20 12) has taken a different view? 11. The AO made disallowance of Rs.1,52,619 u/s 36(1)(va) being deposit of receipt from employees towards contribution to ESIC and EPF beyond the due date prescribed by the relevant Act. Before the CIT (A), the assessee submitted that the amount was paid before the due date for filing of return of income and hence, deduction is to be allowed. The assessee relied on following judicial pronouncements :- (i) CIT vs. Alom Extrusions Limited (2009) 319 ITR 306 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment. This is the scheme of the Act for making an assessee entitled to get deduction from Income insofar as employees' contribution is concerned. Deletion of the second proviso has been treated as retrospective in nature and would not apply at all. The case is to be governed with the application of the first proviso. 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 Acts permit the employer to make the deposit with some delays, subject to the aforesaid sequences. Insofar as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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