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TMI Blog2022 (4) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the PF / ESI laws but within the time allowed u/s 43B. While the AR has relied upon various decisions favouring to the assessee, DR has quoted the decisions against the assessee. We are also informed by both sides that there is no decision of Hon ble jurisdictional High Court of Madhya Pradesh on this issue. In this situation, we are mindful of the decision in Vegetable Products Ltd. [ 1973 (1) TMI 1 - SUPREME COURT] wherein the Hon ble Supreme Court has held that if two reasonable constructions of a taxing provision are possible, that construction which favours the assessee must be adopted. In view of this, the decisions favouring the assessee shall get preference over the decisions against the assessee. Being so we hold that the empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by different parties [referred to as assessee ] are directed against the orders passed by learned Commissioner of Income-Tax (Appeal) [ Ld. CIT(A) ] as per the following details: S.No. ITA No. / Party Assessment Year Date of CIT(A) s order 1. 151/Ind/2021 GSD Constructions Indore Pvt. Ltd. vs. DCIT/ACIT 2018-19 30/07/2021 2. 152/Ind/2021 Kavita Bapat, vs. DCIT/ACIT 1(1) 2018-19 09/06/2021 3. 154/Ind/2021 M/s. VSN International vs. Income Tax Officer -4(3) 2019-20 19/07/2021 4. 173/Ind/2021 Capital Diesels vs. D.C.I.T. 2018-19 31/08/2021 5. 193/Ind/2021 Mukesh Yagnik vs. C.I.T. 2017-18 13/08/2021 6. 194/Ind/2021 Mukesh Yagnik vs. C.I.T. 2018-19 13/08/2021 7. 206/Ind/2021 M/s. Galaxy Weblinks Limited vs. The DCIT/The ADIT 2018-19 30/09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Fund / Employees State Insurance ( PF / ESI ). Being aggrieved by the disallowance so made by Ld. AO, the assessee filed appeal to Ld. CIT(A). However, the Ld. CIT(A) confirmed the disallowance and dismissed the appeal of assessee. Again the order of Ld. CIT(A), the assessee has preferred appeal and now before us. ISSUE: 4. The sole controversy involved is related to the disallowance u/s 36(1)(va) of the Act in respect of delayed payment of employee s contributions to PF / ESI. SUBMISSION OF Ld. AR: 5. The Ld. AR submitted that the Ld. AO has made the disallowance without appreciating that though the assessee had not deposited the employees contributions to PF / ESI upto the due dates prescribed under the PF / ESI laws, yet the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that once the employees contributions are paid after the due dates under PF / ESI laws, disallowance is attracted even if the assessee has made payments within the time allowed u/s 43B i.e. upto the due date u/s 139(1) for filing of return: (a) Hon ble Gujarat High Court in CIT vs. Gujarat State Road Transport Corporation, (2014) 41 taxmann.com 100 (b) Hon ble Gujarat High Court in Pr. CIT vs. M/s Suzlon Energy Ltd. (2020) 115 taxmann.com 340 (c) Hon ble Kerala High Court in CIT Vs. Merchem Ltd. (2015) 378 ITR 443 10. The Ld. DR further submitted that the Finance Act, 2021 has also inserted Explanation 2 to Section 36(1)(va) and Explanation 5 to Section 43B as under: Section 36(1)(va): Explanation 2. For the removal of doubts, it is hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to PF / ESI not paid by the assessee upto due dates under the PF / ESI laws and therefore the disallowance must be upheld. OUR ANALYSIS: 12. We have considered the rival contentions and submission of both sides and also perused the relevant materials available on record. Before proceeding further we would like to mention that the assessee has deposited the impugned contributions to the PF / ESI, though after due date under PF / ESI law but within the time allowed u/s 43B i.e. upto the due date u/s 139(1) for filing return of income and there is no dispute on this point by revenue. 13. Regarding the decisions relied upon by both sides, we observe that there are divergent views of Hon ble High Courts on the allowability of employees contribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the assessment- years preceding the assessment-year 2021-22 i.e. not applicable upto assessment-year 2020-21. This has also been held so in several decisions of ITAT Benches including following: (a) ITAT Kolkata in Harendra Nath Biswas Vs. DCIT, ITA No. 186/Kol/2021 for A.Y. 2019-20, order dated 16.07.2021 (b) ITAT Hyderabad in Salzgitter Hydraulics Private Limited Vs. ITO, ITA No. 644/Hyd/2020 for A.Y. 2019-20, order dated 15.06.2021 (c) ITAT Jodhpur in Akbar Mohammad Vs. ACIT, CPC, Bangalore ITA No. 108 109 / Jodh / 2021 for A.Y. 2018-19 and 2019-20, order dated 31.01.2022 The reliance of the Ld. DR upon the decision of Hon ble Apex Court in the case of Zile Singh (supra) in fact supports the assessee s case and not revenue s case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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