2022 (10) TMI 906

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... nds of appeal:- "1 The learned CIT(Appeals) have erred in confirming the disallowance of employee's contribution u/s. 36(1)(va) amounting to Rs. 1,82,898/- 2. The learned CIT(Appeals) has erred in not at all dealing and ignoring the vital fact of the case that there is no delayed payment of the employees dues but it is a case of merely an interchange of columns due to System error in generating XML file 3. The Appellant craves and reserve the right to add, to vary and/or to modify the ground of appeal." 3. The brief facts of the case are that the assessee received intimation under section 143(1) of the Act, with an addition under section 36(1)(va) of the Act on account of lesser payment of ESI thereby creating a demand of Rs. 57,065/ .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... is legal distinction between employees' contribution and employer's Contribution under the Act was duly recognised by the Courts also. In the most recent of the decisions, Hon'ble Madras High Court in UnifacManagement Services (India) (IP.) Ltd. vs DCIT in 409 ITR 225 held that- "The scope of section 43B and section 36(1)(va) are different and thus, there is no question of reading both provisions together to consider as to whether the assessee is entitled to deduction in respect of the sum belatedly paid towards such contribution, especially when such sum is, admittedly, a sum received by the assessee/employer from his employee. Therefore, for considering such question, application of section 36(1)(va) read with section 2(24) (x) .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ncome-tax Act, after Explanation 4, the following Explanation shall be inserted, namely:-- "Explanation 5.-For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 applies." Thus, the Finance Act 2021 has Clarified that definition of due dates as per Sec 43B is deemed never to have been applied for the purpose of Employee's Contribution. Therefore, the payment employee's contribution made after the due date, by which the appellant is required as an employer to credit an employee's contribution to the employ .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X