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TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 473
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....) 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 can be made to the returned income. 4. The appellant craves leav....
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....ervations: 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 in view of amendment in section 43B pursuant to Finance Act, 2003, by which the second provi....
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....3 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 Income Tax Act, 1961 read with sub-clause (x) of clause 24 of section 2, it is held that with respect to the sum recei....
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....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 contribution to the PF and ESI, not deposited by the appellant within the due date as per the respective Act in accordance with the section 36((1)....
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....0-1989 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 to section 143(1)(a), disallow a claim or a deduction because, in his view, adequate evidence in support of such a claim or deduction is not before him. He c....
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....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 bound to follow the decision of the jurisdictional High Court. Further, the Tax Audit Report furnished by the assessee also specifically gives the suggestion of disallowance under section 36(1)(va) of the Act....