GOSIL EXPORTS PVT LTD, JAIPUR V. DCIT, CIRCLE -I, JAIPUR

ITA 163/JPR/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6572 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2018-2019
• Appeal Filed On: 05-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Question of law
• Section: 2; 43B; 139; 143(1); 250; 192; 139(1); 43

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Mk0 ehBk yky ehuk] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & DR MEETHA LAL MEENA, AM vk;dj vihy la-@ITA No. 163 /JP/2022 fu/kZkj.k o"kZ@Assessment Year : 2018-119 M/s. Gosil Exports Pvt. Ltd. E-70, Sitapura Industrial Area Jaipur cuke Vs. DCIT Circle-1 Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACG8920 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri S.L. Gupta, CA jktLo dh vksj ls@Revenue by: Shri N.S. Nehra, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing : 31/05/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 16 /06/2022 vkns'k@ORDER PER: SANDEEP GOSAIN, J.M. The assessee has filed an appeal against order of the ld. CIT(A) dated 12-03-2022, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2018-19 wherein the assessee has raised solitary ground as under:- ‘’That on the facts and in the circumstances of the case, the ld. CIT(A) erred in law in sustaining additions made to the returned income by CPC while processing u/s 143(1) on account of late deposit of employee contribution to PF and ESI us 36(1)(va) of Income Tax Act, 1961but deposited before due date of filing return.’’ 2 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur 2.1 The main issue arises in this appeal of the assessee is regarding disallowance of employee’s contribution of PF deposited belatedly but before due date of filing of return of income U/s 139(1) of the Income Tax Act, 1961 (in short, the Act). 2.2 The assessee filed its return of income on 31.10.2018 which was processed u/s 143(1) of the Act whereby an adjustment was made on account of disallowance of claim of deduction with respect to employees’ contribution towards PF deposited belatedly. During the course of assessment proceedings, the CPC, Bangalore (for short ‘’AO’’) confirmed the disallowance of Rs.18,49,116/- on account of late deposit of employees contribution towards PF. The assessee challenged the said adjustment before the ld. CIT(A)/NFAC and contended that as per the binding precedents if the payment is made in the government account before due date of filing of return of income U/s 139(1) of the Act then as per provisions of Section 43B of the Act, no disallowance is made. The ld. CIT(A)/NFAC did not accept this contention of the assessee and confirmed the disallowance by considering the amendment in Section 36(1)(va) of the Act whereby an explanation (2) as well as explanation (5) to Section 43B of the Act was inserted being retrospective in nature. 2.3. The Hon'ble Rajasthan High Court as well as other Hon'ble High Courts are consistently holding that where Assessee had paid employees contribution of PF and ESIC, though beyond due date(s) under respective Acts but prior to due date of 3 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur filing the Return of income under sec. 139(1) of IT Act, the payments cannot be disallowed u/s. 43B. The assessee contended that avoiding the binding nature of judgments, the AO was not justified in making addition of Rs.18,49,116/- which was paid before due date of filing of Return of Income and in rejecting application. 2.4 The matter was carried to ld. CIT(A)/NFAC by the assessee and the grounds appeal of the assessee is not allowed by the ld. CIT(A)/NFAC on the issue in question and the decision of the Jurisdictional High court is not considered while passing the order by the ld. CIT(A)/ NFAC. The relevant para 5.5 of ld. CIT(A)/NFAC order dismissing the ground of appeal of the assessee on the issue in question is as under:- 5.5 It is also seen that the language used in the original provision is also very clear with reference to due date of payment as defined in various statutes under which payment is been collected from employees. In view of these facts and discussion, I am of the confirmed view that the appellant was not eligible for deduction u/s 43B of the Act pertaining to payments of employees contribution to EPF/ESIC beyond "due dates under respective statutes. Also, the AO was well within his jurisdiction of the Act to disallow an incorrect claim apparent from the information in Form no. 3CD attached with 4 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur the return of income. Accordingly, the addition of Rs 18,49,116/- by way of disallowance u/s 36(1)(va) is hereby confirmed. The Ground of Appeal related to invoking sec 36(1)(va) are dismissed.’’ 2.5 During the course of hearing, the ld. AR of the assessee prayed that ld, CIT(A)/NFAC has erred in confirming the addition of Rs.18,49,116/- on account of late payment of employees PF Contribution for which the ld. AR of the assessee has filed the following written submission, relying therein various case laws. ‘’At the very outset it is submitted that matter relating to disallowance of employee's contribution to PF and ESI is directly covered by the decision of Hon’ble bench of ITAT Jaipur in appellant own case ITA. No. 1064/JP/2018 ay 2014-15 dated 25-04-2019 and also in case of State bank Of Bikaner and Jaipur and Jaipur Vidyut Vitran Nigam Ltd in ITA No.359/JP/2006, ITA No.358/JP/2006 & ITA No.825/JP/2008 dt.30/04/2010, 30/04/2010 & 24/08/2009 respectively for the Assessment Year 2002-03, 2001-02 and 2002-03 respectively and decision Hon Rajasthan High Court in CIT vs. State Bank of Bikaner and Jaipur (2014) 363 ITR 70, CIT vs. Jaipur Vidyut vitran Nigam Ltd (2014) 363 ITR 307, CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd (2014) 366 ITR 163. The facts and circumstance are exactly same as in the appellant case. Hon'ble Rajasthan High Court I n the case of [2014] CIT v.State Bank of Bikaner & Jaipur 43 taxmann.com 11 (Raj), the Hon'ble Rajasthan High court has held that" On perusal of section 36(1)(va) and section 43(B)(b) and analyzing the judgments rendered, in our view as well, it is clearly that the legislature brought in the statute section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessee in claiming the deduction i.e. accrual basis and the same was being allowed, as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claim/deductions having been made, the said provision 5 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (Supra). Thus, we are of the view that where the PF and /or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under section 139(1), cannot be disallowed under section 438 or under section 36(1)(va) of the LT.Act, In the case of [2014] CIT v.Jaipur Vidyut Vitran Nigam Ltd (49 taxmann.com 540 (Raj), the Hon'ble Rajasthan High Court has held that: "6. We have considered the arguments advanced by the learned counsel for the revenue and have also gone through the impugned orders. In our view no substantial question of law arise out of the orders of the ITAT as it is an admitted fact that the entire amount was deposited by the respondent-assessee at least on or before the due date of filing of the returns under Section 139 of the 1.T. Act and being a concurrent finding of fact by the respective authorities and in the light of the judgments rendered by this Court in the case of Commissioner of Income Tax vs. M/s State Bank of Bikaner & Jaipur (D.B. Income Tax Appeal No.177/2011) so also Commissioner of Income Tax vs. Jaipur VidyutViaran Nigam Ltd. (D.B. Income Tax Appeal No.189/2011), of even date wherein it has been held that if the amount has been deposited on or before the due date of filing the return under Section 139 and admittedly it was deposited on or before the due date then the amount cannot be disallowed under Section 43B of the L.T. Act or under Section 36(1)(va) of the Act. In fact in the above matters one of the party is same as in the present appeals, therefore, the issue is no more res-integra in the light of judgments of this Court referred to supra and, in our view, no substantial question of law arises out of the impugned orders of the ITAT, which may require attention of this Court. 7. We find no merit in these appeals and the same are hereby dismissed. Also a latest decision CIT Vs. Rajasthan State Beverages Corporation Ltd. / Rajasthan State Ganganagar Sugar Mill (2017) 250 Taxman 32 (Raj) the Hon'ble High Court held that the employees' contributions to the PF, ESI, etc. made within the due date of filing the return u/s 139(1) shall be allowable as deduction. It was submitted that against the aforesaid decision of Hon'ble Rajasthan High Court, the SLP filed by the department before the Hon'ble Supreme Court has been dismissed on 04.07.2017 and therefore, the decision of Hon'ble Rajasthan High Court has attained finality As regards to Id CIT Appeal referred for explanation 2 to section 36(1)(va) added by Finance Act 2021, it is submitted that the amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect, the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the foregoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 6 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur 36 (va) of the Act; respectively However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021. Furthermore, after the amendments brought about by the F.A 2021, there are various decision by relying, inter-alia, on the decisions of the jurisdictional High Court has allowed the appeal of the Appellant on this issue. a) The Hon'ble ITAT Jodhpur Bench in case of Mohangarh Engineers and Construction Company ITA No. 05/Jodh/2021, 5 Pali Urban Cooperative Banks Ltd. ITA No. 28 & 29/Jodh/2021, U & T Tractor Spares Pvt. Ltd. ITA No. 43/Jodh/2021 dated 12/08/2021. b] The Hon'ble ITAT Kolkata Bench in case of Harendra Nath Biswas v/s DCIT ITANo. 186/Kol/2021 dated 16/07/2021. c] The Hon'ble ITAT Hyderabad Bench in case of Salzgitter Hydraulics Pvt. Ltd v/s ITO ITA No. 644/Hyd/2020 dated 15/06/2021. It is therefore submitted that in the return of income and financial statement furnished online in which complete details in respect of payment of ESI had been reported and the claim so made by the assessee in accordance with law settled by the Hon'ble Jurisdictional High Court. The adjustment so made u/s 143(1) by the AO was not only beyond the jurisdiction but was also made disregarding the binding decision of Hon'ble Jurisdictional High Court 2. Adjustments u/s 143(1)(a)(iv) on misconception of fact: The Id ITO CPC in misconception of fact while applying section 143(1)(iv) on account of late deposit of employee contribution to EPF and ESI considering disallowance of expenditure indicated in the audit report but not taken into account in computing the total income in the return, it is submitted and undisputed fact that the auditor never indicates disallowance nor it is asked from the auditor, they simply report the date of the due date and date of payment. Hence, in view of the above, it may be said that the ITO CPC is wrong in invoking the provision of section 143(1)(a)(iv) of the Income Tax Act on the fallacy of presumption that the auditor has disallowed the employee contribution to EPF/ESI. Further as there are several contrary judgement on the issue of allowability of late deposit of ESI and EPF which has been taken in first para and it cannot fall under the word prime facie adjustment. The issue of disallowance for late deposit of contribution to PF and ESI debatable in nature hence adjustments u/s 143(1)(a) can not be made. The latest judgment in case S.V. Engineering Constructions India (P) Ltd. Vs DCIT (ITAT Visakhapatnam) 1.T.A.No.130/Viz/2021 on same facts with referring decision in the case of Andhra Trade Development Corporation in LT.A No.434/Viz/2019 dated 05.05.2021 taken the same view that It is settled issue that no debatable issues are permitted to be made adjustments u/s 143(1) of the Act. 7 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur As it is admitted fact that the assessee has deposited all contribution on account of P.F and ESIC received from the employee before due date of submission of the return which are admissible as per above judicial pronouncement of Jurisdictional Hon High Court and this ITAT bench hence. Also as per various decision as referred above, the issue is debatable hence adjustment u/s 143(1) cannot be made. As such addition made by the Id A.O. in adjustment u/s 143(1) is wrong, unjust and erred in law. Your honor is requested to kindly delete the addition.’’ The ld. AR also relied upon the order dated 25-04-2019 of ITAT Jaipur Bench in the case of assessee (Gosil Exports Pvt. Ltd.) in ITA No. 1064/JP/2019 for the assessment year where on similar issue the appeal of the assessee was allowed. 2.6 On the other hand, the ld. DR supported the orders of the lower authorities. 2.7 We have heard both the parties and perused the materials available on record. The Bench noted during the course of hearing that the AO made an addition of Rs.18,49,116/- on account of late deposit of employees PF/ESIC by the assessee. However, the assessee deposited the employees PF/ESIC contribution before due date of filing of return of income u/s 139 of the Act. It is further observed that the ld. CIT(A) has confirmed the action of the AO holding that the sum of Rs.18,49,116/- being employees contribution to PF/ESIC has been paid late under that Act and thus the addition made by the AO deserves to be upheld. The Bench has taken into consideration its various orders wherein similar issue has been decided in favour of the assessee on the 8 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur issue in question. Recently, the similar issue of late deposit of employees PF/ESIC contribution by the assessee but paid the same before due date of filing of return of income in the case of Sanjay Porwal vs CPC, Bengaluru/ITO, Ward 6(4), Jaipur (ITA NO.63/JP/2022) vide order dated 06- 04-2022 has been disposed off by observing as under:- ‘’ 4.7. We have considered the rival submissions as well as the relevant material on record. There is no dispute that prior to the amendment brought by the Finance Bill, 2021 in Section 36(1)(va) as well as Section 43B of the Act, the issue of allowability of employees contribution towards PF and ESI and depositing the same in the government account before the due date of filing of return of income U/s 139(1) of the Act was settled and decided in favour of the assessee by various binding precedents of Hon’ble High Courts including the Jurisdictional High Court. The limited controversy is whether the amendment brought to Section 36(1)(va) as well as 43B of the Act is applicable retrospective or from assessment year 2021-22 as it is specifically stated in the memorandum of Finance Bill, 2021. At the outset, it is noted that the Coordinate Bench of this Tribunal in the case of M/s Kogta Financial (India) Ltd. Vs CPC (supra) has considered this issue in para 5 to 7 as under: “5. We have heard the rival contentions and perused the material available on record. In case of Mohangarh Engineers and Construction Company vs DCIT, CPC (Supra), speaking through one of us, we have extensively dealt with the identical matter relating to employee’s contribution towards ESI/PF and our findings therein read as under:- “13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees’s contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return 9 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees’s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act. 14. The issue is no more res integra in light of series of decisions rendered by the Hon’ble Rajasthan High Court starting from CIT vs. State Bank of Bikaner & Jaipur (supra) and subsequent decisions. 15. In this regard, we may refer to the initial decision of Hon’ble Rajasthan High Court in case of CIT vs. State Bank of Bikaner & Jaipur wherein the Hon’ble High Court after extensively examining the matter and considering the various decisions of the Hon’ble Supreme Court and various other High Courts has decided the matter in favour of the assessee. In the said decision, the Hon’ble High Court was pleased to held as under: “20. On perusal of Sec.36(1)(va) and Sec.43(B)(b) and analyzing the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause & would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the 10 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under Section 139 is permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act.” 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corporation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon’ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon’ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon’ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs 4,38,530/- so 11 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur made by the CPC towards the delayed deposit of the employees’s contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon’ble Rajasthan High Court.” 6. In the instant case, admittedly and undisputedly, the employees’ contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, the ld D/R has referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, I find that there are express wordings in the said memorandum which says “these amendments will take effect from 1 st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years”. In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- “7. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon'ble Karnataka High Court. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also. On this aspect, we find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the 12 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted.” 7. In light of the aforesaid discussions and in the entirety of facts and circumstances of the case and following the consistent decisions taken by the various Benches of the Tribunal, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 37,62,586/- so made by the CPC towards the deposit of the employees’s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted.” Thus, it is clear from the above cited decision that this Tribunal has considered various decisions on this issue and by following decisions of the Coordinate Benches of the Tribunal, this issue was decided in favour of the assessee by holding that amendment in Section 36(1)(va) as well as Section 43B of the Act by way of inserting the explanation vide Finance Bill, 2021 are applicable only from A.Y. 2021-22 and subsequent assessment years and therefore, the said amendment is not applicable to the assessment year under consideration. 4.8. Similar view has been taken by the Delhi Benches of the Tribunal in the case of Chatru Mal Garg Vs ACIT (supra) in para 7 as under: “7. I have heard the rival submissions and perused the materials on record. The issue in the present ground is with respect to disallowance under section 36(1)(va) of the Act. It is an undisputed fact that there has been slight delay in the deposit of employees’ contribution of PF and ESI by the assessee and the contribution have been deposited beyond the due date prescribed by the relevant authorities but at the same time it is also a fact that the amounts have been deposited with the appropriate authorities by the assessee before filing the return of income for the relevant assessment year. I find that Hon’ble Delhi High Court in the case of CIT vs. AIMIL Ltd. (supra) has held that no disallowance under section 36(1)(va) of the Act is called for when the amounts are deposited before filing the return of income. Similar view has also been taken by the Hon’ble 13 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur Punjab & Haryana High Court in the case of CIT vs. Hemla Embroidery Mills (P) Ltd (supra) and Indian Geotechnical Services (supra). As far as the applicability of amendment made by Finance Act 2021 is concerned, I find that the Co-ordinate Bench of Tribunal in the case of Indian Geotechnical Services (supra) has held that amendment made by Finance Bill 2021 shall take effect from 1st April 2021 and will accordingly apply to A.Y. 2021-11 and subsequent years. In the present case assessment year involved is 2018-19 and therefore following the aforesaid decision in thecase of Indian Geotechnical Services (supra), I am of the view that the amended provisions would have no application to the case under consideration. Before me, Learned DR has relied on the decision of Co-ordinate Bench of Tribunal in the case of Vedvan Consultants Pvt. Ltd. (supra). It is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon’ble Supreme Court. I therefore following the decision of High Courts cited hereinabove and the decision of the Co-ordinate Bench of Tribunal, I am of the view that no addition u/s 36(1)(va) of the Act is called for in the present case. Therefore I direct the AO to delete the addition. Thus the ground of assessee is allowed.’’ Thus, it is clear that the Delhi Benches of the Tribunal has considered the earlier decision of the Tribunal in the case of Vadvan Consultants Pvt. Ltd. (supra) which was relied upon by the ld. CIT(A) as well as the ld. DR and the issue was decided by following the decisions of Hon’ble Delhi High Court and Hon’ble Punjab & Haryana High Court and the decisions of the Division Bench of the Delhi Tribunal in the case of Indian Geotechnical Services in ITA No. 622/Del/2018 order dated 27/08/2021. Accordingly, in view of the above discussions as well as following the decisions of the Coordinate Benches of the Tribunal, this issue is decided in favour of the assessee and consequently, the disallowance made on account of employees contribution towards PF & ESIC deposited before due date of filing of return of income U/s 139(1) of the Act amounting to Rs. 2,90,435/- is deleted. 5.0. In the result, the appeal of the assessee is allowed.’’ 14 ITA 163/JP/2022 Gosil Exports (P) Ltd. Vs DCIT, Circle-1, Jaipur 2.8 Respectfully following the order of this Bench in the case of Sanjay Porwal vs CPC Bengaluru/ITO, Ward 6(4), Jaipur (supra), the disallowance made on account of employees contribution towards PF/ESIC deposited before due date of filing of return of income u/s 139(1) of the Act amounting to Rs. 18,49,116/- is deleted. Thus, the solitary ground of appeal of the assessee is allowed. 3.0. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 16/06/2022 Sd/- Sd/- ¼ Mk0 ehBk yky ehuk ½ ¼lanhi xkslkbZ½ (Dr.Meetha Lal Meena) (Sandeep Gosain) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 16 /06/2022 *Mishra vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- M/s. Gosil Exports Pvt. Ltd., Jaipur 2. izR;FkhZ@ The Respondent- DCIT, Circle-1, Jaipur / CPC Bengaluru 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 163/JP/2022) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asstt. Registrar