TaxTMI 
TaxTMI 
2022 (6) TMI 473
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.... grounds of appeal:- "1. The Learned CIT (A) has erred in law and on facts of the appellant's case in confirming an adjustment of Rs. 23,20,076/- U/s 143(l)(a)(iv) of the Act made by Learned A.O. 2. The Learned CIT (A) has erred in law and on facts of the appellant's case in confirming an addition of Rs. 23,20,076/- being employees contribution under PF and ESI Act made by Learned A.O. on the erroneous ground that it is not deposited within the due date as per the respective Act and the same is disallowable U/s 36(l)(va) of the Act. 3. Both the lower authorities have erred in law and on facts & circumstances of the appellant's case in not appreciating the fact that neither such adjustment nor addition ....
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....ection 143(1)(a) of the Act. On merits, the Ld. CIT(A) made the following observations: 5.26. In the case of Commissioner of Income Tax II Vs Gujarat State Road Transport Corporation [2014] 41 taxmann.com 100/366 ITR 170/223 the Hon'ble Gujarat High Court had considered the decision in the case of Alom Extrusions Ltd rendered by the Hon'ble Supreme Court in detail and the difference between employees' contribution and employers' contribution as under: "7.07. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd. (supra), by the learned IT AT as well as learned advocates appearing on behalf of the assesses in support of their submission that i....
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....ent (deletion) of the Second Proviso to section 43(B) of the Income Tax Act, 1961 by the Finance Act, 1963 operates w.e.f. 1/4/2004 or whether it operates retrospectively w.e.f. 1/4/1988. Under the circumstances, the learned tribunal has committed an error in relying upon the decision of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd. (supra) while passing the impugned judgement and order and deleting disallowance of the respective sums being employees' contribution to PF Account / ESI Account, which were made by the AO while considering the proviso to section section 36(1)(va) of the Income Tax Act. 8.00. In view of the above and for the reasons stated above, and considering section 36(1 )(va) of the....
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....r been applied for the purpose of determining the due date for employee's contribution to PF/ESI. From the above judicial decisions and also the unambiguous wording of the now amended provisions of section 36(1) and 43B, it is clear that the employee's contribution can be allowed as a deduction only if it had been paid within the prescribed due dates under the relevant welfare funds and this position of law is and has always been the case and the clarifications brought about by the amendment clearly apply retrospectively. The case laws relied on by the appellant which were rendered prior to clarificatory amendments, therefore are not applicable to the present case, Therefore, the sum of Rs 23,20,076/~ being the employee's contri....
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.... the case of KhatauJunkarLtd.[1992] 61 Taxman 157 (Bom.) observed as below: "Further, as the illustration list in CBDT Circular No. 549 dated 31- 10-1989 shows that only adjustments which are, on the basis of the return and documents accompanying it, allowable or disallowable, can be adjusted. Further, the Board's Circular No. 581 dated 28-9- 1990 makes it clear that the Board itself has viewed the power to make adjustments as co-terminus with the power to rectify mistake apparent from the record under section 154. In the absence of any specific provision in the Act, which disallows a deduction because a specific document specified in that section is not annexed to the return, the ITO cannot, under clause (iii) of the proviso t....
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....rming the disallowance of late deposit of employees Provident fund/ ESIC contribution under section 36(1)(va) of the Act. The Supreme Court in the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd[2008] 173 Taxman 322 (SC) has held that not following decision of the Supreme Court or the jurisdictional High Court would constitute a mistake apparent from record. The jurisdictional High Court in case of Gujarat State Road Transport Corporation supra has directly ruled on this issue against the assessee and has held that employees' contribution (PF/ ESIC) to specified fund will not be allowed as deduction u/s.36(1)(va) if there is delay in deposit as per the due dates mentioned in the respective legislation, in our view, the Department is....