2022 (8) TMI 294

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....to each Ground of appeal (see note below) 1. The Learned CIT(A) has erred in confirming the action of ADIT, CPC in making the addition of Rs.20,31,250/- on account of remittance of employee's contribution towards ESIC and EPF made beyond the due datesRs.6,27,656 specified in the respective Act but before the due date for filing the return u/s 139(1). Rs. 6,27,656 2. The CPC and ld.CIT(A) have not followed the judgment of the Hon'ble High Court of Karnataka in the case of Essae Teraoka (P) Ltd. v. DCIT 11(3) (366 ITR 408) and Spectrum Consultants India (P) Ltd. v.CIT (215 Taxmann.597) to allow employee contribution paid before filing of income tax returns   3. The CPC and Ld.CIT(A) have not appreciated th....

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....ble Gujarat High Court in case of Gujarat Road Transport Corporation reported in (2014) 41 taxmann.com 100. The CIT(A) noticed the difference between the employees' contribution and the employer's contribution and held insofar as the employees' contribution to ESI and PF, the same need to be remitted within the due date as mentioned in the respective Acts. The CIT(A) also relied on the amendment brought about to section 36(1)(va) and 43B of the I.T.Act. 4. Aggrieved, the assessee has filed this appeal before the Tribunal. 4.1 Before us none appeared today on behalf of the assessee. However the issue has been decided in favour of the assessee by various decisions of the Coordinate Bench of this Tribunal as under: M....

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....ourt in the case of CIT v. Gujarat State Road Transport Corporation reported in 366 ITR 170 (Guj.). In holding so, the Hon'ble High Court was considering following substantial question of law:- "Whether in law, the Tribunal was justified in affirming the finding of Assessing Officer in denying the appellant's claim of deductions of the employees contribution to PF/ESI alleging that the payment was not made by the appellant in accordance with the provisions u/s 36(1)(va) of the I.T.Act?" 7.1 In deciding the above substantial question of law, the Hon'ble High Court rendered the following findings:- "20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided in sub para (....

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.... 7.2 The further question is whether the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution of PF and ESI if the payment was m....