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TMI Blog2023 (7) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The issue before the honourable High Court was that whether the employer can decide a wage month or not. Therefore, even otherwise, that decision does not help the case of the assessee. Therefore, as the law is clear and not at all ambiguous, as held by the two honourable high courts, there is no reason to set-aside issue back to the file of the learned assessing officer to take any other due date other than the date to be taken from the date when the wages becomes due. Accordingly, this argument is also rejected. - ITA No. 1430/MUM/2021 - - - Dated:- 14-7-2023 - Shri Prashant Maharishi, AM And Shri Narender Kumar Choudhry, JM For the Assessee : Mr. Sarla Agarwal, AR For the Revenue : Shri Ashok Kumar Ambastha, DR ORDER PER PRASHANT MAHARISHI, AM: 01. This appeal is filed by the assesee Mindcrest (India) Pvt. Ltd. ( the assessee/appellant ) for assessment year 2019-20 against the appellate order passed by the National Faceless Appeal Center (NFAC) [the Ld. CIT(A) ] dated 23.07.2021 for assessment year 2019-20 wherein the appeal filed by the assessee against the intimation passed u/s 143(1) of the Act was dismissed. 02. The only grievance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se squarely covered against the assessee. 07. However, the assessee has raised an alternative claim that the due date of depositing employees contribution to the provident fund shall be counted from the end of the month in which salary is actually paid. For this proposition the three decisions of the co-ordinate bench were relied upon. The assessee also stated that if the due date for depositing provident fund dues is considered as the month of payment of salary, there is no disallowance. Such details are submitted at page no. 23 of paper book. It was, further, the claim that assessee dispute that from which date period of 15 days should be counted for the purpose of section 38 of the Provident Fund Act for this proposition the Ld. AR relied upon the decision of Hon ble Delhi High Court case of Delhi Press Patra Prakshan Ltd. Vs Region Provident Fund [WB (c) No. 3850/1992 and 3887/1993]. According to the Ld. AR assessee is consistently following cycle based on payment of wages Act and therefore the due date of 15 days should be counted from the month when salary is paid or payable. Therefore, according to her there counted cannot be any disallowance. 08. The Ld. Departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , due date for the payment of such contribution arose in the month subsequent to the month in which wages/ salary actually disbursed and therefore the liability to deduct employees' contribution arises only on paying salary to employees? 012. Answering the above question division bench of honourable High Court held as under:- 3. Learned counsel for the appellant would not dispute that the issue of disallowance of late deposited employees' contributions of PF and ESIC stands covered by the Division Bench judgment of this Court in case of Commissioner of Income Tax v. Gujarat State Road Transport Corporation reported in [2014] 366 ITR 170 (Guj). He however raised a slightly different contention which did not arise for consideration before this Court in case of Gujarat State Road Transport Corporation (supra). He submitted that in terms of section 38 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, reference to the time limit for depositing the contributions within 15 days of close of the month must be to the month in which the salary payment is made. For example, therefore if the salary payment for the month of June is made on 5th July, the emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision thus, after deducting the employee's contribution towards the funds, the same has to be deposited with the Government within fifteen days of the close of every month. Reference to fifteen days of the close of the month must be in relation to the month during which the payment of wages is to be made and corresponding liability to deduct employee's contribution to the fund arises. The expression within fifteen days of the close of every month therefore must be interpreted as having reference to the close of the month, for which, the wages are required to be paid with corresponding duty to deduct employee's contribution and to deposit the same in the fund. 6. Learned counsel for the appellant is therefore not correct in contending that if such wages are paid in the following month, the liability to deposit the employee's contribution to the fund gets differed by another month. 013. Further honourable Madras High Court in commissioner of income-tax v madras radiators and pressings ltd. [2003] 264 ITR 620 (Mad) wherein the second question was as under:- 2. Whether the Tribunal was right in law in reckoning the date of pay- ment of salary (viz.) sevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative, against the assessee and in favour of the Revenue. 015. The learned authorized representative has referred the decision of the honourable Delhi High Court in case of Delhi Press Patra Prakashan Ltd. [supra] wherein the issue was whether the wage month should be considered as per the cycle of the wage payment adopted by the assessee consistently. Therefore, the honourable single judge held that The deposit of such contribution, therefore, is required to be made by the employer within fifteen days of the close of the wage month and not the British English Calendar month under para 36 of the Scheme. 016. However as the above decision of the honourable Gujarat High Court and Honourable Madras High Court rendered by the division bench is have categorically dealt with this issue. The decision of the honourable Delhi High Court (rendered by single judge) is in direct contradiction with the decision of the honourable to high courts therefore, we following the decision of the division bench is of the two high courts, hold that there is no relevance of the date of the payment of wages for reckoning the limit of 15 days. Even in that case also, it was not decided that due date i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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