TaxTMI 
TaxTMI 
2023 (7) TMI 684
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..... 03. The briefly stated the fact shows that the assessee has filed its return of income on 28.11.2019 which was processed u/s 143(1) of the Act and resulted into an intimation dated 30.04.2020. The return of income disclosed the business income of Rs. 6,66,52,618/- which was processed by the Central Processing Center at Rs. 6,83,17,268/-. The only adjustment is at serial no. 14 of business and professional annexure wherein the disallowance of Rs. 17,17,650/- made on account of amounts debited profit and loss account to the extent of disallowable. 04. Against the order of the CPC, the assessee preferred an appeal before Ld. CIT(A). The Ld. CIT(A) has noted that there is amendments brought in the recent financial Act wherein the delayed payment cannot be allowed as deduction. He relied upon the several decisions of the Hon'ble High Courts and confirmed the addition. He did not consider decision of the Hon'ble Jurisdictional High Court in 368 ITR 749. 05. The Matter reached to the coordinate bench wherein vide order dated 26.04.2022 in ITA No. 1430/Mum/2021 appeal of the assessee was allowed. Later on Ld. AO preferred miscellaneous application before the co-ordinate bench in MA No....
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..... AR of the Hon'ble Delhi High Court are not relied in view of various decisions of the Hon'ble High Courts, further the decisions of the co-ordinate benches are not corrected in view of the decision of the Hon'ble High Court. 09. We have carefully considered the rival contention and perused order of the lower authority. In this case the details of contribution received from employees" contribution which are paid before the due date prescribed are mentioned at Serial No. 20(b) wherein the details of contribution received from employees as referred in section 36(1)(va) is mentioned. This detail also shows that the assessee is dues date of payment and assessee is actual date of contribution deposited. There is no that the assessee has deposited such contribution beyond prescribed the due date as per the tax audited report and the return on income. Based on this the CPC made adjustment which has confirmed by the Ld. CIT(A). 010. Honourable Supreme Court in checkmate services Ltd 2022 SCC OnLine SC 1423 has categorically held that if the employees contribution is not paid within the due dates prescribed under the respective provident fund/ESIC act, same is not allowable under section....
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.... account in the relevant funds on or before due date. Explanation to the said subsection provides that for the purpose of the said clause, "due date" means a date by which the assessee is required as an employer to credit an employee's contribution to the account in which relevant fund under any Act, rule, order or notification issued there under or under any standing order, award, contract of service or otherwise. section 38 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, becomes relevant. Subsection (1) thereof reads as under: "(1) The employer shall, before paying the member his wages in respect of any period or part of period for which contributions are payable, deduct the employee's contribution from his wages which together with his own contribution as well as an administrative charge of such percentage [of the pay (basic wages, dearness allowance, retaining allowance, if any, and cash value of food concessions admissible thereon) for the time being payable to the employees other than an excluded employee, as the Central Government may fix. He shall within fifteen days of the close of every month pay the same to the fund "electronic through ....
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....ce the actual payment of wages on the seventh day of the succeeding month would not any way alter the situation and give room for interpreting that the "close of 15th day" has to be calculated from the end of the month in which the wages were actually paid. The payment of wages on the seventh day of the succeeding month would not in any way alter the initial responsibility of the employer for making payment of contributions, which he is statutorily authorised to recover from the employees" salary, whether the salary is paid in time or not. Hence the one and only reasonable conclusion is that the employer has to remit both the contributions to the provident fund within 15 days from the close of the month for which the employees earned their salary, i.e., salary payable. Our view has been fortified by the Division Bench of this court in Presidency Kid Leather (P.) Ltd. v. Regional Provident Fund Commissioner [1997] 91 FJR 661, wherein the Division Bench of this court held as follows (page 665) : "As per para. 38 of the Employees" Provident Funds Scheme, the employer is required to remit both the employees" as well as the employer's share of contributions together with administrativ....