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TMI Blog2022 (11) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... n 43B would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution. Respectfully following the decision supra, we are of the view that the delayed payment in respect of employees contribution to PF and ESI is not allowable. In the case of Nirakar Security & Consultancy Services Pvt. Ltd. [2022 (11) TMI 69 - ITAT CUTTACK] Liberty is granted to the ld AR to make all submissions in respect of allowability of disallowed contribution of the employees to PF and ESI under other relevant provisions in the interest of justice. This direction is being given because ld AR has submitted that as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this appeal is delayed payment of PF and ESI of Rs. 7,93,719/- in respect of employees contribution. It was the submission that the payment was made before the due date of filing of the return u/s. 139(1) of the Act. 5. In reply, ld Sr DR submitted that the issue is now squarely covered by the decision of the Hon'ble Supreme Court in the case of Checkmate Services Pvt Ltd vs CIT in Civil Appeal No. 2833 of 2016 dated 12.10.2022, wherein, the Hon'ble Supreme Court has categorically held that if the employees contribution to PF and ESI has been paid beyond the time prescribed under the relevant PF Act, then same is not allowable under section 43B even after the payment has been made before the due date of filing of return under the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irections: "6. Liberty is granted to the ld AR to make all submissions in respect of allowability of disallowed contribution of the employees to PF and ESI under other relevant provisions in the interest of justice. This direction is being given because ld AR has submitted that as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be treated as income in the hands of the assessee u/.s. 2(24)(x) and on subsequent payment of the same, it would be a business expenditure, which can be claimed u/s. 37(1) of the Act. We are not expressing any opinion in regard to his arguments as it h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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