TaxTMI 
TaxTMI 
2022 (5) TMI 742
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....rjit Kamboz, Monvica Kaushal, Ravinder Kumar Sharma and Rishabh Marwaha, CAs ORDER 1. The captioned appeals and Cross Objection have been preferred by the assessee/Revenue against the separate orders of the Ld. First Appellate Authority as per the details given below:- S. No. ITA No. Appeal by First Appellate Authority 1 18/ Chd/ 2022 Revenue 11. 11. 2021 2 9/ Chd/ 2021 Revenue 24. 11. 2021 3 12/ Chd/2022 Assessee 22. 11. 2021 4. 31/ Chd/2022 Assessee 02. 12. 2021 5 32/ Chd/2022 Assessee 08. 12. 2021 6 394/Chd/2021 Assessee 25. 10. 2021 7 418/Chd/2021 Revenue 25. 10. 2021 8 C. O. 1/Chd/ 2022 Assessee 25. 10. 2021 9. 14/ Chd/2022 Assessee 03. 12. 2021 10. 15/ Chd/2022 Assessee 03. 12. 2021 11. 78/ Chd/2022 Assessee 22. 12. 2021 12. 16/ Chd/2022 Assessee 23. 12. 2021 1.1. Since these appeals involved an identical question, they were heard in a bunch on two separate dates and they are being disposed off by this common order for the sake of convenience. 1.2. For the sake of convenience, the grounds taken by the various p....
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....ming the addition of Rs. 2,24,740/- by disallowing expenditure related to Bonus which is covered u/s. 43B and such action/order of the CIT(A) is perverse and needs interference by this Hon'ble Tribunal for which the appellant respectfully prayeth vide this present appeal. 3. That the learned CIT (Appeals) is not justified in concurring with the Ld. A.O and thereby confirming the addition of Rs. 13,069/- u/s. 36(1)(va) when such amount has been paid before the due date and the amendment regarding insertion of explanation 2 in section 36(1)(va) and explanation 5 in section 43B in the Finance Bill 2021 is with prospective effect. 4. That the Appellant craves for leave to add, modify amend or delete any of the grounds of appeals at the time of hearing and all the above grounds are without prejudice to each other. 2.3. ITA No. 31/Chd/2022 1. That the impugned Order is bad in law, since it has been passed as it has been passed without giving any opportunity to the appellant to present his case. 2. It is settled law before the amendments were made by the Finance Act 2021, that no disallowance can be made under section 36 (1) (va) of the Act, when....
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....y the Assessing Officer in respect of delayed payment of employee's contribution, beyond the prescribed time, to the Welfare Funds like EPF. 1(a) That the Ld. CIT(A) erred on facts and law ignoring the distinction between provision of section 36(1)(v) r.w.s 43B and provisions of section 36(1)(va) r.w.s 2(24)(x) of the Income Tax Act, 1961, which clearly provide for different treatment. While the delayed payment of employers contribution is allowable if found before the filing of return whereas employee's contribution is disallowed for once and all if payment is delayed beyond the prescribed time. 1(b) That the Ld. CIT(A) erred in ignoring and failing to take into account the amendment carried out by Finance Act, 2021 by way of inserting Explanation 1 & Explanation 2 below section 36(1)(va) of the Act which has been interpreted by the Hon'ble Appellate Tribunal, Delhi Bench in M/s. Vedvan Consultants Pvt. Ltd., New Delhi ITA No. 1312/Del/2020 dated 26.08.2021 which was held that the aforesaid explanation was clarificatory. 2. That the Ld. CIT(A) erred in ignoring the Circular No. 22/2015 issued by the CBDT. 2.7. C.O. No. 1/Chd/2022 (arising ....
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....is prospective and not retrospective as held by the Chandigarh/Ahmadabad bench of the ITAT and CIT(A), National Faceless Appeal Centre, Delhi in various cases. 3. The Ld. CIT(A), National Faceless Appeal Centre, Delhi erred on facts and law in confirming the action of the AO of disallowing the amount of Rs. 4,78,732/- u/s. 36(i)(va) on account of payment of employees contribution beyond the due dates as prescribed under the relevant Act because the CIT(A), National Faceless Appeal Centre, Delhi has acted against the principals of judicial consistency as held by the Hon'ble Supreme Court in various cases. 4. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off. 2.11 ITA No. 16/Chd/2022: 1. The Ld. CIT(A) has wrongly confirmed the addition of Rs. 452475/- under section 36, when in fact the actual ESI and EPF payments were made before the due date of filing the ITR as per challans submitted before CIT(A) and several judicial pronouncements are in favour of the assessee. 2. Any other ground of grounds as may be urged at the time of hearing. "The appellant craves leave....
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....any fund set up under the provisions of ESI Act or any other fund for the welfare of such employees. 4.3. The Ld. Sr. DR argued that on a plain reading of the section, it would be clear that the assessee would be entitled for deduction qua the sum received from any employee to which provisions of sub-section (x) of clause (24) of section 2 is applied, only, if such sum is credited by assessee to the employees' account in the relevant fund or funds on or before the due date. It was submitted that the due date is further defined in the Explanation, which means the date by which the assessee is required as an employer to credit employee's contribution to the employees' account in the relevant fund under any Act or Rule or Order or Notification issued thereunder or any standing order or award or service or otherwise. She argued that, therefore, in case, where the employer fails to deposit the entire amount towards employee's contribution on account of PF and ESI with the concerned department on or before the due date under PF and ESI Acts, the assessee shall not be entitled for deduction to that extent. She underlined that according to the Employees Provident Funds S....
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....contribution, the assessee is only entitled to a deduction under section 36(1)(va) if the sums received from the employee is credited in a specified account by the due date established by the applicable statute. The Ld. Sr. DR also drew our attention to the judgement of the Hon'ble Madras High Court in Unifac Management Services (India) (P.) Ltd. vs DCIT in 409 ITR 225 wherein it has been stated that "The scope of section 43B and section 36(1)(va) are different and thus, there is no question of reading both provisions together to consider as to whether the assessee is entitled to deduction in respect of the sum belatedly paid towards such contribution, especially when such sum is, admittedly, a sum received by the assessee/employer from his employee. Therefore, for considering such question, application of section 36(1)(va) read with section 2(24)(x) alone is the proper course and any other interpretation would only defeat the object and scope of both the provisions viz., 43B (b) and 36(1)(va)." 4.7. The Ld. Sr. DR further submitted that vide Finance Act 2021, the Government has further amended the law to bring certainty to the issue. She submitted that explanation to sectio....
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....295/410 ITR 417 (Delhi): ii) CIT v. Gujarat State Road Transport Corporation [2014] 41 taxmann.com 100/223 Taxman 398/ 366 ITR 170 iii) Unifac Management Services (India) (P.) Ltd. vs DCIT in 409 ITR 225 of Hon'ble Madras High Court (Supra) 5. Per contra, the Ld. Authorised Representatives appearing on behalf of the captioned assessees submitted that it is settled law by now that employees' contribution to ESI and PF, though not paid within the due dates prescribed under the respective Act, but paid well before the due date of filing of the return of income u/s. 139(1) of the Act, was an allowable expense. It was the contention of the Ld. ARs that in the captioned appeals, the respective assessees had deposited the employees contribution towards ESI and PF well before the due date of filing of the return of income u/s. 139(1) of the Act and that this fact of filing of return before the due date prescribed u/s. 139(1) of the Act was not in dispute. The Ld. ARs placed reliance on a plethora of orders of the various Benches of the Tribunal across the country as well as of jurisdictional High Court namely Hon'ble Punjab & Haryana High Court. It was subm....
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....no. 273/CHD/2021 dated 02.12.2021 f. Raja Ram Vs. ITO, Yamunanagar in ITA Nos. 191 & 192/Chd/2021 dated 20/10/2021 5.3. It was the contention of the Ld. ARs that in the light of the above judicial precedents, the assessees should be allowed the benefit of deduction of Employees' Contribution to ESI and PF, if the same have been deposited before the due date of filing of return u/s. 139(1) of the Act. It was fairly accepted by the parties that the issue was common in all the captioned appeals and would apply mutatis mutandis in all cases. 6. We have heard the rival submissions and have also perused the material on record. The fact that in all the captioned appeals, the employees' contribution of ESI and PF had been deposited before the due date of filing of return u/s. 139(1) of the Act is not in dispute. It is seen that the said issue, as far as the present Forum is concerned, stands fully covered in favour of the assessees not only by the consistent orders of the various Benches of the ITAT across the country but also by the consistent orders of the Chandigarh Bench of the ITAT. It is seen that all along, the Co-ordinate Benches have held that the amendments....