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Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
ORDER
Per Shri A.T.Varkey, JM
This is an appeal filed by the revenue against the order of Ld. CIT(A)-9, Kolkata dated 28.08.2015 for AY 2012-13.
Ground nos. 1 and 5 are general in nature and require no adjudication. 3. Ground nos. 2, 3 and 4 deals with the sole issue as to whether the Ld. CIT(A)’s action in deleting the addition of Rs.1,83,19,698/- made by AO on account of employee’s contribution to PF/ESI not paid before the due date as stipulated by the respective statute governing PF & ESI.
Brief facts are that the AO noted that the assessee has not deposited the employee’s contribution towards PF & ESI before the due date prescribed as per PF & ESI Act and, therefore, according to him the said amounts are disallowable u/s. 43B of the Income-tax Act, 1961 (hereinafter referred to as the “Act”). So, he disallowed a sum of Rs.1,83,19,464/- . Aggrieved, the assessee preferred an appeal before the Ld. CIT(A), who was pleased to delete the same. Aggrieved, revenue is in appeal before us.
2 Utpal Kumar Guha, AY 2012-13 5. At the time of hearing before us none appeared on behalf of the assessee. However, taking into consideration the fact that this issue is no longer res integra, we are inclined to dispose of the appeal after hearing the Ld. DR.
We have heard Ld. DR and we find that the assessee has deposited the employees’ contribution to employees’ account in the relevant account before the due date of filing of return. The due date as prescribed in sec. 43B(b) of the Act in respect to remittance of the contribution made to PF & ESI should be made by the assessee any time before filing of return as stipulated under section 139(1) of the Act. The assessee, when it claims deduction has to have evidence to establish the fact of remittance of PF & ESI contribution made before the return is filed as per section 139(1) of the Act. If the assessee has remitted the PF & ESI before the return of income was filed as per sec. 139(1) of the Act, the AO ought not to have proceeded on the basis that due date as mentioned in sec. 36(1)(va) of the Act is the due date fixed by the PF Act, whereas the due date has to be read in conjunction with sec. 43B(b) of the Act and by reading so, the due date as mentioned in sec. 36(1)(va) of the Act is due date as mentioned in sec. 43B(b) of the Act i.e. before filing the return for the year under consideration. The Ld. DR could not bring anything to controvert the factual finding of the Ld. CIT(A) that the PF & ESI contributions have been remitted by the assessee before the return of income was filed as prescribed u/s. 139(1) of the Act. In such a scenario, we do not find any infirmity in the order passed by the Ld. CIT(A). The Ld. CIT(A) vide para 5 of his order has held the following:
“5. Ground No.(iv) relates to disallowance of Rs.l,83,19,464/- being employees contribution towards PF of Rs.l,13,83,088/- and also employees contribution towards ESI of Rs. 69,36,376/- respectively. This issue has already been adjudicated by CIT(A)-9, Kolkata in the appellant's own case for the A.Y.2010-11 by which he allowed the appeal. In the addition, the A.R of the appellant relied upon the judgement of Hon'ble High Court, Uttarakhand at Nainital in the case of M/s. Kichha Sugar Company Ltd. Vs. CIT in Income Tax Appeal No.50 of 2009, in which the Hon'ble High Court has held that: "therefore, the due date referred to in section 36(1)(va) of the Act must be read in conjunction with section 43B(b) of the Act and a reading of the same would make it amply clear that the due date as mentioned in Section 36(1)(va), is due date as mentioned in section 43B(b) i.e. payment/contribution made to the Provident Fund Authority any time before filing the return for the year in which the liability to pay accrued along with evidence to establish payment thereof The Assessing Officer proceeded on the basis that "due date", as mentioned in section 36(1)(va) of the Act, is the due date fixed by the Provident Fund Authority, whereas in the matter of 3 Utpal Kumar Guha, AY 2012-13 culling out the meaning of the word “due date”, as mentioned in the said section, the Assessing Officer was required to take note of Section 43B(b) of the Act and by not taking note of the provisions contained therein committed gross error, which having been rectified by the Appellate Authority and confirmed by the Tribunal, there is no scope of interference.” Hence, the appeal on this ground is allowed.”
We concur with the view of the Ld. CIT(A) as discussed above and, therefore, we dismiss the appeal of the revenue.
In the result, appeal of revenue is dismissed. Order is pronounced in the open court on 6th October, 2017.