SUNITA SURESH JADHAV,PUNE vs. INCOME-TAX OFFICER, WARD 14(2), PUNE

आदेश / ORDER

PER R.S.SYAL, VP : This appeal by the assessee is directed against the order passed by the CIT(Appeals) - National Faceless Appeal Centre (NFAC), Delhi u/s 250 of the Income-tax Act, 1961 (hereinafter also called `the Act’) on 10-12-2021 in relation to the assessment year 2017-18. 2. There is delay of one day in filing this appeal. In this regard, the ld. AR submitted that the delay is caused owing to the Covid pandemic and therefore, the same may be condoned in view of the judgment of Hon’ble Supreme Court in Suo Motu Petition (Civil) No.3/2020, dated 23-03-2020 read with order dated 27-04-2021.

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of Limitation, In re 438 ITR 296 (SC) read with judgment in

Cognizance for Extension of Limitation, In re 432 ITR 206 (SC)

dated 08-03-2021 and 421 ITR 314 has taken suo motu cognizance

of the situation arising out of the challenge faced by the country on

account of COVID-19 Virus and resultant difficulties that could be

faced by the litigants across the country and extended the time limit

for filing of the appeals. I, therefore condone the delay in filing the

appeal and admit the same for disposal on merits.

of disallowance of Rs.14,90,362/- made by the Assessing Officer

(AO) u/s.36(1)(va) read with section 43B of the Income-tax Act,

1961 (hereinafter also called ‘the Act’).

deposited the amount of Employees Provident Fund (EPF) and

Employee State Insurance Contribution (ESIC) by certain days as has

been tabulated on page 2 of the assessment order. Considering the

fact that there was a delay in the payment of employees’ contribution

to EPF & ESIC etc., the AO disallowed Rs.14,90,362/- by invoking

the provisions of section 36(1)(va) r.w.s.2(24)(x) of the Act. The ld.

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CIT(A) sustained the addition, against which the assessee has come

in appeal before the Tribunal.

material on record. It is an admitted position that the assessee did

deduct employees’ share of EPF and ESIC but paid the same after the

due date under the respective legislations but before the time for

filing of the return u/s 139(1) of the Act. This issue is no more res

integra in view of several judgments allowing deduction u/s

36(1)(va) of employees’ share of contribution deposited after due

date under the respective Acts but before the date prescribed u/s 139

of the Act. The Hon’ble Himachal Pradesh High Court in CIT vs.

Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP) has held that there

exists no difference between employees’ or employer’s contribution

and both are to be allowed as deduction if deposited before the due

date.

2021 has inserted Explanation 2 below section 36(1)(va) providing

that the provisions of section 43B shall not apply for the purpose of

determining the due date under this clause w.e.f. 01.04.2021. The

effect of this amendment is that if the amount of employees’

contribution towards EPF, ESIC, etc is delayed by an employer

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beyond the due date under the respective Acts, the disallowance will

be called for notwithstanding the fact that it was deposited before the

due date u/s 139 of the Act. The Memorandum explaining the

provisions of the Finance Bill, 2021, provides that this amendment will take effect from 1st April, 2021 and will, accordingly, apply in

relation to assessment year 2021-2022 and subsequent assessment

years. Since the assessment year under consideration, namely, 2017-

18 is anterior to the amendment carried out with effect from A.Y.

2021-22, I hold that the position of law as set out by various Hon’ble

High Courts including the one in CIT vs. Nipso Polyfabriks Ltd.

(supra) squarely applies to the facts and circumstances of the instant

case thereby not warranting any disallowance as the amount in

question was admittedly deposited before due date u/s 139(1) of the

Act. The addition is therefore, directed to be deleted.

Order pronounced in the Open Court on 21st March, 2022.

Sd/- (R.S.SYAL) उपा�य�/ VICE PRESIDENT पुणे Pune; �दनांक Dated : 21st March, 2022 Satish

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आदेश क� ��त�ल�प अ�े�षत / Copy of the Order is forwarded to : 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; 3. The CIT(A), National Faceless Appeal Centre, Delhi 4. The Pr.CIT concerned �वभागीय ��त�न ध, आयकर अपील!य अ धकरण, पुणे “SMC” 5. / DR ‘SMC’, ITAT, Pune; 6. गाड� फाईल / Guard file.

आदेशानुसार/ BY ORDER,

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

Date 1. Draft dictated on 17-03-2022 Sr.PS 2. Draft placed before author 21-03-2022 Sr.PS 3. Draft proposed & placed -- JM before the second member 4. Draft discussed/approved -- JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement Sr.PS on 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *