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TMI Blog2014 (9) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring total income of Rs.27,06,220/-. During the course of assessment proceedings the Assessing Officer noted from clause 16(b) of Form No. 3CD that the assessee has not deposited the employees' contribution towards PF amounting to Rs.32,12,365/- and employees' contribution to ESI amounting to Rs.7,65,177/- to the Government Account within the due date prescribed under the Act. Rejecting the explanation of the assessee that such amount has been deposited before the due date of filing of the return, the Assessing Officer, relying on various decisions held that the above amounts totalling to Rs.39,77,542/- is forming part of the income of the assessee u/s.2(24)(x) r.w.s. 36(1)(va) of the I.T. Act. He, therefore, added the same to the tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the CIT(A) failed to appreciate the fact that the amendment to section 43B is applicable only to employer's contribution and not to employee's contribution and hence, whether second proviso to Sec. 43B omitted w.e.f. 01.04.2004 is retrospective or not, is not germane to issue of employee's contribution? 5. The appellant craves leave to add, amend or alter any of the above grounds of appeal." 4. The Ld. Departmental Representative filed a copy of the decision of the Hon'ble Gujarat High Court in the case of CIT Vs. Gujarat State Road Transport Corporation reported in 265 CTR 64 (Guj.) and submitted that the Hon'ble Gujarat High Court in the said decision has held that where the employer has not credited the sum received by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. We have also considered the various decisions cited before us. The only issue to be decided in the grounds of appeal is as to whether the employees' contribution towards PF and ESI paid after the statutory due dates but deposited before the due date of filing of the return prescribed u/s.139(1) is an allowable expenditure or not. We find the Hon'ble Jurisdictional High Court in the case of Hindustan Organics Chemicals Ltd. (Supra) has decided an identical issue in favour of the assessee by observing as under : "We find no merit in the aforestated contention. Section 43B of the Income-tax Act, 1961, was inserted in the Act with effect from April 1, 1984, by which the mercantile system of accounting with regard to tax, duty and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum has actually been paid in cash or by issue of a cheque or draft or by any other mode on or before the due date as defined in the Explanation below clause (va) of sub-section (1) of section 36, and where such payment has been made otherwise than in cash, the sum has been realised within fifteen days from the due date". On a plain reading of the above provisos, it became ex facie clear that the assessees-employers were entitled to deductions only if the contributions to any fund for the welfare of the employees stood credited on or before the due date given in the relevant Act. However, the-second, proviso once again created further difficulties for the assessees-employers; Therefore, industry once again made representations to the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon the aforesaid judgment of the Supreme Court, has dismissed the Revenue's appeal and confirmed the order passed by the Commissioner of Income-tax (Appeals). In this view of the matter and in view of the fact that the Supreme Court has expressly held that the amendments to section 43B that were brought about by the Finance Act, 2003, are retrospective in nature, we find mat the Income-tax Appellate Tribunal was fully justified in deleting the addition of Rs. 1,82,77,138 on account of the delayed payment of provident fund of the employees7 contribution. We, therefore, find that no substantial question of law arises on this count as sought to be contended by Mr. Malhotra on behalf of the Revenue. Even otherwise, we fail to understa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal cannot be in any way said to be vitiated on the ground of perversity or any error apparent on the face of the record and, therefore, does not give rise to any substantial question of law which needs to be answered by this court. In view thereof, we find no merit in this appeal and the same is dismissed. No order as to costs". 6.1 Similarly, the Tribunal in assessee's own case for A.Y. 2006- 07 vide ITA No.1272/PN/2012 order dated 27-09-2013 has decided an identical issue in favour of the assessee and dismissed the appeal filed by the Revenue by observing as under : "6. We have carefully considered the rival submissions. There is no dispute to the factual matrix that the controversy in the present appeal is covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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