2021 (9) TMI 218

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....he same are not susceptible of giving rise to any adverse conclusion. 2. That the Learned Commissioner of Income Tax (Appeals) has grossly erred in confirming the addition of Rs. 1,09,260/- on account of late deposit of Employees Contribution to ESI and EPF on the basis of conjectures, surmises and without appreciating the facts of the case and the provisions of the act as applicable during the financial year relevant to the assessment year and on date of filing of Income Tax Return. The addition merits deletion. 3. That the action of the Learned Commissioner of Income Tax (Appeals) in confirming the addition of Rs. 1,09,260/- on account of late deposit of Employees Contribution to ESI and EPF is arbitrary, unwarranted and....

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....ssions the Ld. DR strongly supported the impugned order passed by the Ld. CIT(A). 8. We have considered the submissions of both the parties and perused the material available on the record. In the present case it is not in dispute that the assessee deposited the amount in question before filing the return of income therefore, it was allowable deduction under section 43B of the Act. It is noticed that a similar issue having identical facts has been decided vide order dt. 05/08/2021 of this Bench of the Tribunal in ITA No. 133 & 134/Chd/2021 for the A.Y. 2018-19 & 2019-20 in the case of Hotel Surya Vs. DCIT wherein the relevant findings have been given in para 9 and 9.1 of the said order which read as under: 9. We have considered ....

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....ovident fund as the contributions had been deposited prior to the filing of the return under section 139(1)." So respectfully following the ratio laid down by the Hon'ble Jurisdictional High Court in the aforesaid referred to case, the impugned addition made by the AO and sustained by the Ld. CIT(A) is deleted. 9.1 Similar issue has also been decided by the Hon'ble Jurisdictional High Court in the case of CIT vs. Nipso Polyfabriks Ltd. [2013] 350 ITR 327 (supra) wherein it has been held as under: "The deletion of the second proviso to section 43B which specifically made a reference to section 36(1)(va) was curative in nature and, hence, would apply with retrospective effect from April 1, 1988. The second p....