ACIT, CIRCL-10(2), KOLKATA, KOLKATA vs. M/S, S & IB SERVICES PVT. LTD., KOLKATA

Ground no. 1 of the revenue’s appeal reads as under:

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the assessee claimed depreciation on motor car @ 30% but the AO

We find that the factual finding as recorded by the Ld. CIT(A) was not controverted by the Ld. DR before us by providing any material, therefore, we do not find any justification to interfere in the aforesaid order of the Ld. CIT(A) and hence, the same is hereby confirmed. This ground of appeal of revenue is, therefore, dismissed.

Brief facts of the case are that the AO made the disallowance of Rs.30,87,301/- by invoking sec. 36(1)(va) r.w.s. 2(24)(x) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) on account of making payment for the employee’s PF & ESI after the due date. On appeal, the Ld. CIT(A) deleted the disallowance on the ground that the contribution was claimed to have been deposited before the due date as provided u/s. 139(1) of the Act for filing return. Aggrieved, revenue is before us.

We have heard rival submissions and gone through facts and circumstances of the case. We find that the employees’ PF and ESI payments are within the due date of filing of return of income by the assessee u/s. 139(1) of the Act and once these payments are within the said due date, the issue is covered by the judgment of jurisdictional High Court in the S&IB Services Pvt. Ltd., AY- 2013-14 case of CIT Vs. M/s. Vijay Shree Limited vide ITAT No. 245 of 2011 in GA No.2607 of 2011 dated 7th September, 2011, wherein it has been held as under: “After hearing Mr. Sinha, learned advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec. 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees’ contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal.”

We note that the issue before us is no longer res integra because it has been decided by Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd. Supra, that in case the assessee remitted the PF & ESI on or before the due date of filing of return u/s. 139(1) of the Act, deduction in respect to the remitted amount of PF & ESI deducted on account of employee’s contribution before due date of filing of return u/s. 139(1) of the Act, hence, we do not find any infirmity in the order of the Ld. CIT(A) which we uphold and, therefore, we dismiss this ground of appeal of revenue.

In the result, appeal of revenue is dismissed.