Selva Gold Covering Pvt. Ltd., Coimbatore v. DCIT, Coimbatore

ITA 693/CHNY/2017 | 2013-2014
Pronouncement Date: 25-11-2019 | Result: Allowed

Appeal Details

RSA Number 69321714 RSA 2017
Assessee PAN AADCS0688Q
Bench Chennai
Appeal Number ITA 693/CHNY/2017
Duration Of Justice 2 year(s) 8 month(s) 4 day(s)
Appellant Selva Gold Covering Pvt. Ltd., Coimbatore
Respondent DCIT, Coimbatore
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 25-11-2019
Date Of Final Hearing 19-07-2017
Next Hearing Date 19-07-2017
First Hearing Date 19-07-2017
Assessment Year 2013-2014
Appeal Filed On 21-03-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI . . . ' ' BEFORE SHRI N.R.S. GANESAN JUDICIAL MEMBER AND SHRI RAMIT KOCHAR ACCOUNTANT MEMBER ITA NO.693/CHNY/2017 ( ( /ASSESSMENT YEAR: 2013-14 M/S.SELVA GOLD COVERING PVT. LTD. NO.1127 RIBBON BUILDING BIG BAZAAR STREET COIMBATORE-641 001. V . THE DEPUTY COMMISSIONER OF INCOME-TAX CORPORATE CIRCLE-2 COIMBATORE-641 018. [PAN: AADCS0688Q ] ( + /APPELLANT) ( -+ /RESPONDENT) + . / APPELLANT BY : MR.N.ARJUNRAJ ADV. -+ . /RESPONDENT BY : MS.R.ANITHA JCIT . /DATE OF HEARING : 11.11.2019 . /DATE OF PRONOUNCEMENT : 25.11.2019 / O R D E R PER RAMIT KOCHAR ACCOUNTANT MEMBER : THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST APPELLATE ORDER DATED 30.12.2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1 COIMBATORE (HEREINAFTER CALLED THE CI T(A)) IN APPEAL NO.49/16-17 FOR ASSESSMENT YEAR (AY) 2013-14 THE A PPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) HAD ARISEN FROM ASSESSMENT OR DER DATED 21.03.2016 PASSED BY LEARNED ASSESSING OFFICER (H EREINAFTER CALLED THE ITA NO.693/CHNY/2017 :- 2 -: AO) U/S.143(3) OF THE INCOME-TAX ACT 1961 (HEREI NAFTER CALLED THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN MEM O OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI (HE REINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) IN HIS APPELLATE ORDER ITA 49/16-17 DATED 30.12.2016 HAS PASSED APPE LLATE ORDERS CONFIRMING AND UPHOLDING THE ADDITION MADE BY THE A SSESSING OFFICER FOR THE ASSESSMENT YEAR 2013-14 REPRESENTING THE CLAIM OF DEDUCTION OF P.F. AND E.S.I. CONTRIBUTION OF EMPLOYEES AMOUNTING TO R S.33 32 061/-. IT IS CLAIMED IN THIS APPEAL THAT THE ABOVE CITED ORDER O F THE LEARNED C.I.T. (APPEALS) IS ERRONEOUS AND IS NOT IN ACCORDANCE WIT H THE PROVISIONS OF LAW AID THE SAME IS CONTRARY TO THE JUDICIAL DECISIONS RENDERED ON THE ISSUE. 2. THE LEARNED C.I.T.(APPEALS) IS NOT JUSTIFIED IN CONCLUDING THAT THE P.F. AND E.S.I. CONTRIBUTIONS OF THE EMPLOYEES IF THEY A RE NOT PAID WITHIN THE DUE DATES SPECIFIED UNDER THE RESPECTIVE STATUTES C ANNOT BE ALLOWED AS A DEDUCTION. 3. THE STAND TAKEN BY THE LEARNED C.I.T.(APPEALS) T HAT THE PROVISIONS OF SECTION 43B CANNOT BE APPLIED TO THE CONTRIBUTIONS OF EMPLOYEES TOWARDS P.F. AND E.S.I. THAT THEY ARE ONLY COVERED UNDER SE C.36 (1)(VA) AND EXPLANATION APPEARING ON THIS. 4. WHILE MANY JUDICIAL DECISIONS HAVE RENDERED FAVO URABLE VERDICT ON THE ISSUE THE LEARNED C.I.T.(APPEALS) IS NOT JUSTIFIED IN RELYING ON THE UNFAVOURABLE DECISION RENDERED BY THE GUJARATH HIGH COURT IN THE CASE OF C.I.T. VS GUJARATH STATE TRANSPORT CORPORATION (366 ITR 170) AND KERALA HIGH COURT'S DECISION IN THE CASE OF C.L.T.VS MERCH EM LTD. (378 ITR 443) ALONE TO CONFIRM THE ADDITION. 5. THE LEARNED C.L.T.(APPEALS) IS NOT JUSTIFIED IN RELYING ON THE BOARD'S CIRCULAR NO. 22/2015 DATED 17.12.2015/ HE FAILED TO NOTE THAT THE BOARD'S CIRCULAR IS CONTRARY TO THE PRINCIPLES OF LAW ESTAB LISHED. 6. THE LEARNED C.L.T.(APPEALS) FAILED TO NOTE THAT CLAUSE (B) OF SECTION 43B ALSO INCLUDES EMPLOYEES CONTRIBUTION TO P.F. SINCE THE REMITTANCE OF SUCH CONTRIBUTION IS ALSO THE LEGAL OBLIGATION OF THE EM PLOYER. THIS COULD BE CONFIRMED BY THE FACT THAT AFTER CLAUSE (B) A PROVI SION WAS ADDED TO REGARDING THE NECESSITY ON THE PART OF THE EMPLOYEE S TO ADHERE TO THE DUE DATES PRESCRIBED UNDER SECTION 36 (1)(VA) OF THE AC T. HENCE THE LEARNED C.L.T. (APPEALS) IS NOT CORRECT IN CONCLUDING THAT THE OBLIGATIONS REFERRED TO ITA NO.693/CHNY/2017 :- 3 -: IN SECTION 36 (1)(VA) OR THE EXPLANATION TO THIS SE CTION IS NOT TO BE CONSIDERED UNDER SEC. 43B. 7. THE C.L.T.(APPEALS) OUGHT TO HAVE NOTED THAT AFT ER DELETION OF THE ABOVE CITED REQUIREMENT IN THE PROVISIONS OF SECTION 43B THE APPELLANT COMPANY WOULD BE ELIGIBLE TO CLAIM DEDUCTION OF THE AMOUNT OF EMPLOYEES CONTRIBUTIONS TO P.F. AND E.S.I BEFORE THE DUE DAT E FOR FILING THE RETURN OF INCOME UNDER SECTION 139(1). 8. THE LEARNED C.L.T.(APPEALS) IS NOT JUSTIFIED IN TAKING A STAND THAT THE DECISION OF THE SUPREME COURT IN THE CASE OF C.L.T. VS ALOM EXTRUSIONS (319 ITR 306) DOES NOT DEAL WITH EMPLOYEES CONTRIBU TION WHICH ARE COVERED UNDER SEC. 36 (1)( A) BUT ONLY DEALS WITH T HE RETROSPECTIVE AMENDMENT OF SECTION 43B AND HENCE THE DECISION OF THE SUPREME COURT CANNOT BE APPLIED IN CASE OF P.F. AND E.S.I. EMPLOY EES CONTRIBUTIONS THAT ARE REMITTED BEYOND THE DUE DATE SPECIFIED IN THE R ESPECTIVE STATUTE. 9. ON THE OTHER HAND THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) OUGHT TO HAVE GONE THROUGH THE TEXT OF THE SUPREME COURT'S DECISION IN THE CASE OF ALOM EXTRUSIONS. THE SUPREME COURT IN T HEIR ORDER CLEARLY REFER TO THE EMPLOYEES' CONTRIBUTION TO BE TREATED AS INC OME UNDER SEC. 2(24)(X) AND DEAL WITH THE OMISSION OF SECOND PROVI SO TO SECTION 43B IN THIS REGARD AND MAKE REFERENCE OF THE PROVISIONS OF SECTION 36 (1) (VA). 10. HENCE IT IS CLEAR THAT THE HON'BLE SUPREME COUR T HAS CLEARLY HELD THAT WITH THE OMISSION OF THE SECOND PROVISO THE EMPLOY EES CONTRIBUTION IF REMITTED WITHIN THE DUE DATES PRESCRIBED UNDER SEC. 139 (1) SHALL BE ELIGIBLE FOR DEDUCTION. HENCE THERE IS NO JUSTIFICA TION IN HOLDING THAT SECTION 43B DOES NOT DEAL WITH ALLOWABILITY OF EMPLOYEES CO NTRIBUTION. 11. THE LEARNED C.L.T.(APPEALS) OUGHT TO HAVE FOLLO WED THE BINDING DECISION OF THE MADRAS HIGH COURT IN THE CASE OF CO MMISSIONER OF INCOME- TAX VS M/S INDUSTRIAL SECURITY AND INTELLIGENCE IND IA PVT. LTD. (TAX CASE APPEAL NO. 585 AND 586 OF 2015 DATED 24.07.2015) WH EREIN THE HONORABLE HIGH COURT HAS CLEARLY CONCLUDED THAT THE EMPLOYEES CONTRIBUTION TO P.F. AND E.S.I. PAID WITHIN THE DUE DATES FOR FILING THE RETURN PRESCRIBED UNDER SEC.139 (1) CAN BE ALLOWED AS A DEDUCTION FOLLOWIN G THE VERDICT OF SUPREME COURT AND ALSO THE DECISION OF THE DELHI HI GH COURT IN THE CASE OF C.L.T. VS AIMIL LTD. (321 ITR 508). 12. FOR THESE OR ANY OTHER GROUNDS THAT MAY BE RAIS ED AT THE TIME OF HEARING OF APPEAL IT IS PRAYED THAT THE HONORABLE TRIBUNAL MAY BE PLEASED TO PASS ORDERS DELETING THE ADDITION MADE AMOUNTING TO RS.33 32 061/- REPRESENTING THE CLAIM OF DEDUCTION OF P.F. AND E.S .I CONTRIBUTION OF EMPLOYEES AND PASS ORDERS DISMISSING THE APPELLATE ORDER OF THE C.L.T. (APPEALS) AND RENDER JUSTICE. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESS EE IS IN BUSINESS OF WHOLESALE AND RETAIL TRADING OF GOLD COVERING JEWEL LERY. THE ONLY EFFECTIVE ITA NO.693/CHNY/2017 :- 4 -: ISSUE IN THIS APPEAL IS WITH RESPECT TO DISALLOWANC E BY AO OF `33 32 061/- TOWARDS EMPLOYEES CONTRIBUTION OF PROVIDENT FUND(P F) & EMPLOYEES STATE INSURANCE(ESI) DEDUCTED BY ASSESSEE FROM SALARIES OF EMPLOYEES(CALLED AS EMPLOYEES CONTRIBUTION) WHICH WAS DEPOSITED LATE BEYOND THE DUE DATE PRESCRIBED UNDER RELEVANT STATUTES GOVERNING PF AND ESI FOR DEPOSIT OF SAID PF AND ESI CONTRIBUTION WHICH IN THE OPINION OF REVENUE HAS INFRINGED PROVISIONS OF SECTION 36(1)(VA) OF THE 19 61 ACT THEREFORE AS PER REVENUE SAID SUM IS LIABLE TO BE ASSESSED AS INCOME IN THE HANDS OF ASSESSEE BY INVOKING PROVISIONS OF SECTION 2(24)(X ) R.W.S. 36(1)(VA) OF THE 1961 ACT. IT IS ADMITTED POSITION BETWEEN RIVAL PARTIES THAT AN AGGREGATE AMOUNT OF ` 33 32 061/- WAS DEDUCTED BY ASSESSEE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI FROM S ALARIES OF EMPLOYEES DURING PREVIOUS YEAR RELEVANT TO IMPUGNED AY AND THE SAID AMOUNT WAS DEPOSITED BY ASSESSEE BEYOND DUE DATE PRESCRIBED FO R DEPOSIT OF PF AND ESI UNDER THE RELEVANT STATUTES GOVERNING PF AND ES I BUT HOWEVER ADMITTEDLY THE SAID AMOUNT OF ` 33 32 066/- WAS DEPOSITED BY ASSESSEE BEFORE THE DUE DATE PRESCRIBED FOR FILING OF RETURN OF INCOME U/S 139(1) OF THE 1961 ACT. THE ASSESSEE CONTENDED BEFORE AO THAT AS PER PROVISIONS OF SECTION 43B OF THE 1961 ACT SINCE SAID AMOUNT WAS PAID BEFORE THE DUE DATE PRESCRIBED FOR FILING OF RETURN OF INCOME U/S 139(1) OF THE 1961 ACT THE SAID AMOUNT CANNOT BE BROUGHT TO TAX IN THE HAN DS OF THE ASSESSEE. THE AO WAS OF THE VIEW THAT IT IS ONLY EMPLOYER CON TRIBUTION WHICH SHALL GET SHELTER U/S 43B OF THE 1961 ACT IF THE SAME IS DEPOSITED ON OR BEFORE THE DUE DATE PRESCRIBED FOR FILING OF RETURN OF INC OME U/S 139(1) OF THE ITA NO.693/CHNY/2017 :- 5 -: 1961 ACT BUT EMPLOYEE CONTRIBUTION PAID BELATEDLY B EYOND THE TIME PRESCRIBED FOR PAYMENT UNDER THE RELEVANT STATUTE G OVERNING PF AND ESI IS HIT BY PROVISIONS OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE 1961 ACT. THE AO RELIED UPON DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V. GUJARAT STATE ROAD TRANSPORT COR PORATION REPORTED IN 41 TAXMANN.COM 100 (GUJ) /2014 (366 ITR 170) AND AL SO DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF CIT V. MER CHEM LTD. REPORTED IN (2015) 61 TAXMANN.COM 119 (KERALA) TO HOLD THAT E MPLOYEE CONTRIBUTION TOWARDS PF AND ESI WHICH WAS DEDUCTED BY ASSESSEE F ROM SALARIES OF THE EMPLOYEES AND WHICH STOOD DEPOSITED BEYOND THE DUE DATE PRESCRIBED FOR DEPOSIT OF PF AND ESI AS PROVIDED UNDER RELEVANT ST ATUTE GOVERNING PF AND ESI SHALL BE DEEMED TO BE INCOME OF THE ASSESSEE KE EPING IN VIEW PROVISIONS OF SECTION 36(1)(VA) READ WITH SECTION 2 (24)(X) OF THE 1961 ACT. THE AO ALSO REFERRED TO CBDT CIRCULAR NO.22/20 15 IN F.NO.279/MISC./140/2015-ITJ DATED 17.12.2015 FOR MA KING ADDITIONS TO THE INCOME OF THE ASSESSEE FOR BELATED DEPOSIT OF E MPLOYEE CONTRIBUTION OF PF AND ESI VIDE ASSESSMENT ORDER DATED 21.03.2016 PASSED BY AO U/S 143(3) OF THE 1961 ACT 4 AGGRIEVED BY AN ASSESSMENT FRAMED BY AO U/S 143(3 ) OF THE 1961 ACT VIDE ASSESSMENT ORDER DATED 21.03.2016 THE ASSESS EE FILED FIRST APPEAL WITH LEARNED CIT(A) WHICH STOOD DISMISSED BY LEARNE D CIT(A) VIDE APPELLATE ORDER DATED 30.12.2016 BY FOLLOWING AFOR ESAID DECISIONS OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V. GU JARAT STATE ROAD ITA NO.693/CHNY/2017 :- 6 -: TRANSPORT CORPORATION (SUPRA) AND ALSO DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF CIT V. MERCHEM LTD. (SUPRA) A S WELL AFORESAID CBDT CIRCULAR DATED 17.12.2015. 5. AGGRIEVED BY AN APPELLATE ORDER DATED 17.12.2015 PASSED BY LEARNED CIT(A) THE ASSESSEE HAS NOW FILED AN APPEAL BEFORE THE TRIBUNAL. THE LD.COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO T HE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. M/S.INDUSTR IAL SECURITY & INTELLIGENCE INDIA PVT. LTD. IN TCA NO. 585 AND 586 OF 2015 VIDE JUDGMENT DATED 24.07.2015 FOR AY: 2003-04 AND 200 4-05 . THE RELIANCE WAS ALSO PLACED BY LEARNED COUNSEL FOR THE ASSESSEE ON DECISION OF CO- ORDINATE BENCH OF CHENNAI-TRIBUNAL IN THE CASE OF ACIT V. CARAT LANE TRADING PRIVATE LIMITED REPORTED IN (2018) 89 TAXMA NN.COM 434(CHENNAI- TRIB.) FOR AY: 2012-13 TO WHICH ONE OF US BEING H ONBLE JUDICIAL MEMBER WAS PART OF THE DIVISION BENCH OF CHENNAI-TRIBUNAL WHICH PRONOUNCED THE SAID ORDER. THE LD.DR ON THE OTHER HAND SUPPORTE D APPELLATE ORDER PASSED BY LEARNED CIT(A). 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE HAVE OBSERVED THAT ASSESSEE IS IN THE BU SINESS OF WHOLESALE AND RETAIL TRADING OF GOLD COVERING JEWELLERY. WE HAVE OBSERVED THAT ASSESSEE HAD DEDUCTED PF & ESI SHARE OF EMPLOYEES C ONTRIBUTION FROM SALARIES OF EMPLOYEES TO THE TUNE OF `33 32 061/- IN AGGREGATE DURING THE YEAR UNDER CONSIDERATION WHICH ADMITTEDLY WAS DEPOSITED LATE BY ASSESSEE BEYOND DUE DATE PRESCRIBED FOR DEPOSIT OF PF/ESI UNDER RELEVANT ITA NO.693/CHNY/2017 :- 7 -: STATUTES GOVERNING PF & ESI BUT ADMITTEDLY SA ID AMOUNTS OF EMPLOYEES CONTRIBUTION TOWARDS PF/ESI DEDUCTED BY A SSESSEE FROM EMPLOYEES SALARIES WERE DEPOSITED BY ASSESSEE BEFOR E DUE DATE PRESCRIBED FOR FILING OF RETURN OF INCOME U/S.139(1) OF THE 19 61 ACT. WE HAVE OBSERVED THAT HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. M/S.INDUSTRIAL SECURITY AND INTELLIGENCE INDIA PVT. LTD. (SUPRA) FOR AY: 2003-04 AND 2004-05 HAS HELD THAT IF EMPLOYEES CONT RIBUTION OF PF AND ESI DEDUCTED FROM EMPLOYEES SALARY IS DEPOSITED BEF ORE DUE DATE PRESCRIBED U/S.139(1) OF 1961 ACT THE DEDUCTION FO R SAME SHALL BE ALLOWED BY HOLDING AS UNDER: 2. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS: THE RESPONDENT/ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEARS IN QUESTION. THE SAID RETURNS WERE PROCESSED AND WERE NOT SELECTED FOR SCRUTINY. SUBSEQUENTLY THE ASSESSING OFFICER NOTICED THAT TH ERE WAS ESCAPEMENT OF INCOME AND HENCE REOPENED THE ASSESSMENTS UNDER SECTION 14 7 OF THE INCOME TAX ACT BY ISSUING NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT. WHILE COMPLETING THE RE- ASSESSMENT THE ASSESSING OFFICER DISALLOWED THE EX PENSES CLAIMED BY WAY OF EMPLOYEE'S CONTRIBUTION TO PF AND ESI HOLDING THAT THE ASSESSEE HAD NOT PAID THE EMPLOYEE'S CONTRIBUTION OF PF AND ESI WITHIN THE DU E DATES SPECIFIED UNDER THE RESPECTIVE ACT. AGGRIEVED BY THE SAID ORDER OF ASSE SSMENT THE ASSESSEE PREFERRED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPE ALS) CHALLENGING THE REOPENING AS WELL AS THE DISALLOWANCE. THE COMMISSI ONER OF INCOME TAX (APPEALS) SUSTAINED THE ORDER OF THE ASSESSMENT THEREBY DISM ISSED THE APPEALS. AGGRIEVED BY THE SAME THE ASSESSEE PREFERRED FURTHER APPEALS BEFORE THE TRIBUNAL. THE TRIBUNAL RELIED UPON THE DECISION OF THE SUPREME CO URT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. REPORTED IN 319 ITR 306 DECISION O F THE DELHI HIGH COURT IN THE CASE OF CIT V. AMIL LTD. REPORTED IN 321 ITR 508 AN D THAT OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S.VENKATESWA RA ELECTRICAL INDUSTRIES P. LTD. V. DCIT IN ITA NOS.1344 1345 AND 1636/MDS/2014 DAT ED 28.8.2014 HELD AS FOLLOWS: '5. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHO RITIES AND THE DECISIONS RELIED ON BEFORE US. IT IS NOT IN DISPUTE THAT ALL THESE PAYMENTS OF PROVIDENT FUND RS.16 20 571/- AND ESI RS.17 51 490/- WERE MAD E BEYOND THE GRACE PERIOD/DUE DATE ALLOWED UNDER PROVIDENT FUND & ESI ACTS BUT BEFORE DUE DATE FOR FILING OF INCOME-TAX RETURN. THIS ISSUE HA S BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY VARIOUS HIGH COURTS FOLLOWING TH E DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIO NS LTD. (319 ITR 306) WHEREIN THE HON'BLE SUPREME COURT HELD THAT OMISSIO N OF SECOND PROVISO TO SECTION 43B AND AMENDMENT OF FIRST PROVISO BY FINAN CE ACT 2003 ARE ITA NO.693/CHNY/2017 :- 8 -: CURATIVE IN NATURE AND ARE EFFECTIVE RETROSPECTIVEL Y AND THUS WITH EFFECT FROM 1.4.1988 I.E. THE DATE OF INSERTION OF FIRST P ROVISO. THE CO-ORDINATE BENCH OF THIS TRIBUNAL CONSIDERING A SIMILAR ISSUE IN THE CASE OF M/S.VENKATESWARA ELECTRICAL INDUSTRIES P. LTD. VS. DCIT (SUPRA) FOLLOWING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. AMIL LTD. (321 ITR 508) HELD THAT EVEN THE EMPLOYEES CONTRIBU TION TO PROVIDENT FUND IS TO BE ALLOWED AS DEDUCTION IF IT IS PAID WITHIN DUE DATE FOR FILING OF RETURN. WHILE HOLDING SO THE TRIBUNAL OBSERVED AS UNDER:- '6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRE SENTATIVES OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHOR ITIES BELOW AS WELL AS THE JUDGMENTS/DECISIONS RELIED ON BY THE LD. COUNSE L FOR THE ASSESSEE. IT IS AN UNDISPUTED FACT THAT THERE HAS BEEN DELAY IN REM ITTANCE OF EMPLOYEES CONTRIBUTION OF ESI AND PROVIDENT FUND IN BOTH THE AYS I.E. 2008-09 & 2009-10. IT IS EQUALLY UN-DISPUTED THAT THE ASSESSE E HAS DEPOSITED THE AMOUNT TOWARDS EMPLOYEES CONTRIBUTION OF ESI AND PR OVIDENT FUND BEFORE THE DUE DATE OF FILING OF RETURN. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. AMIL LTD. REPORTED AS 321 ITR 508 HAS HELD THAT IF THE ASSESSEE HAD DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND AND ESI AFTER DUE DATE AS PRESCRIBED UNDER THE RELEVANT ACT BUT B EFORE THE DUE DATE OF FILING OF RETURN UNDER THE INCOME TAX ACT NO DIS-A LLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS OF SECTION 43B AS AMENDED BY THE FINANCE ACT 2003. THE DECISION OF THE HON'BLE DELHI HIGH COURT HAS BEEN FOLLOWED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE O F JCIT VS. M/S.S.M.APPARELS (P) LTD. (SUPRA). THE TRIBUNAL HA S BEEN CONSISTENTLY FOLLOWING THE VIEW TAKEN BY THE HON'BLE DELHI HIGH COURT. ACCORDINGLY WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM EXPENDI TURE ON EMPLOYEE'S CONTRIBUTION TOWARDS ESI AND PROVIDENT FUND FOR BOT H THE AYS. ACCORDINGLY BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED.' 6. RESPECTFULLY FOLLOWING THE ABOVE DECISION WE D IRECT THE ASSESSING OFFICER TO DELETE DISALLOWANCES MADE UNDER SECTION 43B OF THE ACT FOR BOTH THESE ASSESSMENT YEARS. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED.' 3. AGGRIEVED BY THE SAID ORDER OF THE TRIBUNAL THE REVENUE IS BEFORE THIS COURT. 4. HEARD LEARNED STANDING COUNSEL APPEARING FOR THE REVENUE AND PERUSED THE MATERIALS PLACED BEFORE THIS COURT. 5. WE FIND THAT THE TRIBUNAL HAS RIGHTLY RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. RE PORTED IN 319 ITR 306 WHEREBY THE SUPREME COURT HELD THAT OMISSION OF SE COND PROVISO TO SECTION 43B AND AMENDMENT TO FIRST PROVISO BY FINANCE ACT 2003 ARE CURATIVE IN NATURE AND ARE EFFECTIVE RETROSPECTIVELY I.E. WITH EFFECT FR OM 1.4.1988 I.E. THE DATE OF INSERTION OF FIRST PROVISO. THE DELHI HIGH COURT IN THE CASE OF CIT V. AMIL LTD. REPORTED IN 321 ITR 508 HELD THAT IF THE ASSESSEE H AD DEPOSITED EMPLOYEE'S CONTRIBUTION TOWARDS PROVIDENT FUND AND ESI AFTER D UE DATE AS PRESCRIBED UNDER THE RELEVANT ACT BUT BEFORE THE DUE DATE OF FILING OF RETURN UNDER THE INCOME TAX ACT NO DISALLOWANCE COULD BE MADE IN VIEW OF THE P ROVISIONS OF SECTION 43B AS AMENDED BY FINANCE ACT 2003. 6. IN THE PRESENT CASE THE ASSESSEE HAD REMITTED T HE EMPLOYEES CONTRIBUTION BEYOND THE DUE DATE FOR PAYMENT BUT WITHIN THE DUE DATE FOR FILING THE RETURN OF INCOME. HENCE FOLLOWING THE ABOVE-SAID DECISIONS WE FIND NO REASON TO DIFFER WITH THE FINDINGS OF THE TRIBUNAL. ACCORDINGLY WE FIND NO QUESTION OF LAW MUCH LESS ANY SUBSTANTIAL QUESTION OF LAW ARISES FOR CON SIDERATION IN THESE APPEALS. ITA NO.693/CHNY/2017 :- 9 -: ACCORDINGLY BOTH THE TAX CASE (APPEALS) STAND DISM ISSED. NO COSTS. CONSEQUENTLY M.P.NO.1 OF 2015 IS ALSO DISMISSED. FOR SAKE OF COMPLETENESS WE WOULD LIKE TO REFER T O DECISION IN WRIT PETITION TAKEN BY SINGLE JUDGE OF HONBLE MADRAS HI GH COURT IN THE CASE OF UNIFAC MANAGEMENT SERVICES ( INDIA) PRIVATE LIMITED V. DCIT IN WMP NO. 6461 OF 2018 WHILE JUDGMENT DATED 23.10.2018( REPO RTED IN (2018) 409 ITR 225(MAD.) WHEREIN A CONTRARY VIEW IS TAKEN BY SINGLE JUDGE OF HONBLE MADRAS HIGH COURT. THIS ISSUE IS NOT FREE F ROM CONTROVERSY AS IT IS OBSERVED THAT DIFFERENT HIGH COURTS ACROSS INDIA HA VE TAKEN A DIFFERENT VIEW ON THIS ISSUE. WE HAVE ALSO OBSERVED THAT CHENNAI-TRIBUNAL IN THE CASE OF ACIT V. CARAT LANE TRADING PVT. LTD. IN ITA NO.213(MDS.) OF 2017 VIDE ORDERS DATED 28.12.2017 FOR AY: 2012-13 REPORTED IN [2018] 89 TA XMANN.COM 434 (CHENNAI-TRIB.) HAS DECIDED THIS ISSUE IN FAVOUR OF THE TAX-PAYER WHEREIN IT HAS BEEN HELD THAT EMPLOYEES CONTRIBUTION TOWARD S TOWARDS PF & ESI DEDUCTED BY AN EMPLOYER FROM SALARIES OF EMPLOYEES IF DEPOSITED BEFORE DUE DATE PRESCRIBED FOR FILING OF RETURN OF INCOME U/S.139(1) SHALL BE ALLOWED AS DEDUCTION AND SHALL NOT BE HIT BY PROVIS IONS OF SECTION 36(1)(VA) KEEPING IN VIEW PROVISIONS OF SECTION 43B OF THE 1961 ACT BY HOLDING AS UNDER: 8. ON THE DISALLOWANCE OF PF & ESI: THE AO DISALLOWED RS. 7 10 666/- EMPLOYEES CONTRIBU TION & ESI RS. 73 244/- WHICH WAS REMITTED TO GOVERNMENT BEFORE THE DUE DAT E AND FILED RETURN U/S. 139(1). THE CIT(A) HELD AS UNDER: '22. I HAVE CAREFULLY PERUSED THE FACTS IN ISSUE S UBMISSIONS MADE BY THE APPELLANT AND MATERIAL ON RECORD. AS REGARDS THE DI SALLOWANCE OF DELAYED PAYMENT ITA NO.693/CHNY/2017 :- 10 -: ON EMPLOYEES CONTRIBUTION TO PF IS CONCERNED IT WI LL SERVE USEFUL PURPOSE TO REFER TO CIRCULAR NO.22/2015 DATED 17.12.2015 IN F.NO. 27 9/MISC./140/ 2015-ITJ. IT HAS BEEN CLARIFIED THEREIN THAT THE APEX COURT DEC ISION IN THE CASE OF CIT V. ALOM EXTRUSIONS LTD. 185 TAXMAN 416 HAS BEEN ACCEPTED WI TH REGARD TO THE EMPLOYER'S CONTRIBUTION TO THE PF FUND OR SUPERANNUATION FUND OR GRATUITY FUND IF DEPOSITED ON OR BEFORE THE DUE DATE. NO DISALLOWANCE COULD BE MADE U/S 438 OF THE ACT. IT HAS ALSO BEEN CONTRIBUTION TO WELFARE FUNDS GOVERNE D BY S.36(1)(VA). HOWEVER IN VIEW OF THE JURISDICTIONAL HIGH COURT'S DECISION DA TED 24.7.2015 IN THE CASE OF CIT V. INDUSTRIAL SECURITY AND INTELLIGENCE INDIA (P.) LTD. IN TC (A) NO.585 & 586 OF 2015 AND MP NO.1 OF 2015 IT HAS BEEN HELD THEREIN PLACING RELIANCE ON THE DELHI HIGH COURT'S DECISION IN THE CASE OF AIMIL LTD. 321 ITR 508 THAT IF THE ASSESSEE HAD DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI AFTER THE DUE DATE AS PRESCRIBED UNDER THE RELEVANT ACT BUT BEFORE THE D UE DATE OF FILING OF THE RETURN UNDER THE INCOME TAX ACT NO DISALLOWANCE COULD BE MADE IN VIEW OF THE PROVISIONS U/S.43B AS AMENDED BY FINANCE ACT 2003. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE HIGH COURT THE PLEA OF THE APPELLANT IS ALLOWED. THIS GROUND OF APPEAL IS ALLOWED.' 8.1 THE REVENUE'S RELEVANT GROUNDS OF APPEAL ARE AS UNDER: '4. THE LEARNED CIT(A) HAS ERRED IN DELETING THE AD DITION MADE IN RESPECT OF EMPLOYEES CONTRIBUTION TOWARDS PF & ESI OF RS.7 83 910/- WHICH WAS REMITTED BEYOND THE PRESCRIBED DUE DATES 4.1 THE LEARNED CIT(A) ERRED IN DELETING THE ADDITI ON MADE IN RESPECT OF DELAYED REMITTANCE OF ITS EMPLOYEES CONTRIBUTION OF PROVIDE NT FUND DESPITE THE FACT THAT CIRCULAR NO.22/2015 DATED 17.12.2015 CLEARLY APPLIE S TO CLAIM OF DEDUCTION RELATING EMPLOYERS' CONTRIBUTION AND NOT FOR EMPLOY EES CONTRIBUTION TO WELFARE FUNDS. 4.2 THE LEARNED CIT(A) FAILED TO APPRECIATE THAT A NY RECEIVED SUM RECEIVED ON ACCOUNT OF EMPLOYEES' CONTRIBUTION TO PROVIDENT FUN D & ESI NOT REMITTED WITHIN THE DUE DATE IS TO BE TREATED AS THE INCOME OF THE ASSESSEE AND TAXED IN HIS HANDS AS PER PROVISIONS OF SEC.2(24)(X) OF THE LT. ACT 1 961.' 8.2 THE DR ASSAILED THE ORDER OF THE CIT(A) BASED O N THE ASSESSMENT ORDER AND ON THE ABOVE GROUNDS OF APPEAL. PER CONTRA THE AR SUBMITTED THAT THE RETURN WAS FILED ON 28.09.2012 AND THE REMITTANCES WERE MADE B EFORE THE DUE DATE ON FILING RETURN. ALTHOUGH THE CIT(A) DELETED THE DISALLOWAN CE BASED ON THE JURISDICTIONAL HIGH COURT DECISIONS STILL THE DEPARTMENT HAS FILED THIS APPEAL. 9. WE HEARD THE RIVAL CONTENTIONS. SINCE THE CIT(A ) HAS APPLIED THE RATIO OF THE JURISDICTIONAL HIGH COURT HIS ORDER IN THIS REGARD DOES NOT REQUIRE INTERFERENCE. THE CORRESPONDING GROUNDS OF REVENUE'S APPEAL ARE D ISMISSED. 10. IN THE RESULT THE REVENUE'S APPEAL IS DISMISSE D. RESPECTFULLY FOLLOWING THE AFORESTATED DECISION(S) OF DIVISION BENCH OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF I NDUSTRIAL SECURITY & INTELLIGENCE INDIA PRIVATE LIMITED(SUPRA) AND CO-OR DINATE BENCH OF THIS TRIBUNAL IN THE CASE OF CARAT LANE TRADING PVT. LTD .(SUPRA) WE DECIDE THIS ITA NO.693/CHNY/2017 :- 11 -: ISSUE IN FAVOUR OF THE ASSESSEE AND HOLD THAT EMPLO YEES CONTRIBUTION TOWARDS PF AND ESI DEDUCTED BY ASSESSEE FROM SALARI ES OF EMPLOYEES WHICH IS DEPOSITED BY ASSESSEE BEYOND THE DUE DATE PRESCRIBED UNDER RELEVANT STATUTES GOVERNING PF AND ESI BUT DEPOSIT ED PRIOR TO DUE DATE OF FILING OF RETURN OF INCOME U/S.139(1) OF THE 1961 A CT SHALL BE ALLOWED AS DEDUCTION AND WE DIRECT DELETION OF THE ADDITIONS MADE TO THE INCOME OF THE ASSESSEE. THE ASSESSEE SUCCEEDS IN ITS APPEAL F ILED WITH TRIBUNAL. WE ORDER ACCORDINGLY. IN THE RESULT APPEAL FILED BY ASSESSEE IN ITA NO. 693/CHNY/2017 FOR AY: 2013-14 IS ALLOWED. ORDER PRONOUNCED ON THE 25 TH DAY OF NOVEMBER 2019 IN CHENNAI. SD/- SD/- ( . . . ) ( N.R.S. GANESAN ) /JUDICIAL MEMBER ( ' ) ( RAMIT KOCHAR ) /ACCOUNTANT MEMBER /CHENNAI 2 /DATED: 25 TH NOVEMBER 2019. TLN . '3 43 /COPY TO: 1. + /APPELLANT 4. 5 /CIT 2. -+ /RESPONDENT 5. 3 /DR 3. 5 ( ) /CIT(A) 6. ( /GF