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TMI Blog2023 (1) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ate deposit of PF contribution - disallowance made u/s. 43B on account of delayed contribution of PF/ESI dues - HELD THAT:- It is an undisputed fact that the PF/ESIC dues which were disallowed by A.O. were not deposited by the assessee before the due date prescribed under the respective statute. We find that Hon ble Apex Court in the case of Checkmate Services (P.) Ltd. [ 2022 (10) TMI 617 - SUPREME COURT] has held that employees contribution is money held by the assessee employer in trust and is its income unless paid into the fund by due date . It has further held that the due date is the date prescribed by the enactment governing the fund in question and it is deductible only if it is deposited in respective fund by that date. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O, the assessee carried the matter in appeal before the Ld. CIT(A) who vide order dated 29.09.2017 in Appeal No. 108/17-18-CIT(A)-22 allowed the appeal of the assessee. 3. Aggrieved by the order of the Ld. CIT(A), the Revenue is now in appeal and has raised the following grounds:- 1. The Ld. CIT(A) has erred in law as well as in facts in deleting the disallowance of Rs. 411.02 Lakhs made by AO on account of provisions made against loss of stock due to damage/obsolete conditions. 2. The Ld. CIT(A) has erred in law as well as in facts in deleting the disallowance of Rs. 1,69,90,870/- made by the AO u/s 43B of the IT Act without appreciating the fact that CBDT has issued a circular No. 22/2015 dated 17.12.2015 wherein it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that assessee has only made a provision for writer off stock and it was not an ascertained liability. He accordingly, denied the claim of non-moving inventory to the extent of Rs. 11,32,12,000/- and made its addition. 5. Aggrieved by the order of A.O, assessee carried the matter before the Ld. CIT(A). The Ld. CIT(A) while deciding the issue in favour of the assessee noted that in assessee s own case for the same assessment, year in the order passed u/s. 153C r.w.s. 153A his predecessor had allowed the claim of the assessee. He further noted that his predecessor had given a finding that though the assessee had used the nomenclature as provision for obsolete stock but it was actually write off of stock. He following the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before us, Revenue did not pointed to any fallacy in the findings of the Ld. CIT(A) nor has pointed to any distinguishing facts of the case in the year under consideration and that of A.Y 2003-04. We therefore find no reason to interfere with the order of the Ld. CIT(A), thus the ground of the Revenue dismissed. 10. Ground no. 2 is with respect to the deleting the disallowance of Rs. 1,69,90,870/- being late deposit of PF contribution. 11. During the course of assessment proceedings A.O. noticed that assessee had not remitted the PF dues by the due dates. When the assessee was asked to show cause as to while the same not be disallowed it was submitted that though the payments have been made belatedly but have been made within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in trust and is its income unless paid into the fund by due date . It has further held that the due date is the date prescribed by the enactment governing the fund in question and it is deductible only if it is deposited in respective fund by that date. In the present case since it is undisputed fact that the amount of contribution of PF/ESI has not been deposited before the due date prescribed under the relevant Acts, therefore following the decision of Hon ble Apex Court in the case of Checkmate Services (P.) Ltd. (Supra) the same is not allowable. We accordingly, uphold the action of A.O. in disallowing the same. Thus the ground of the Revenue is allowed. 16. In the result, appeal of the Revenue is partly allowed. Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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