Sanchi Management Services Pvt.Ltd, Chandigarh V. ITO-Ward-5(2), Chandigarh

ITA 190/CHANDI/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3023 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2018-2019
• Appeal Filed On: 16-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Assessee Lawyers: GAURAV MITTAL
• Keywords: Question of law
• Section: 43B; 143(1); 191; 139(1); 43; 9(1); 9(1); 9(1); 13; 2; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC, CHANDIGARH .. , !' BEFORE SHRI N.K.SAINI, VICE PRESIDENT HEARING THROUGH VIDEO CONFERENCING ./ ITA NOS. 191 & 192/CHD/2021 / ASSESSMENT YEARS : 2017-18 & 2018-19 RAJA RAM, 292, KRISHNA COLONY, OLD HAMIDA, YAMUNA NAGAR 135001, HARYANA VS. THE ITO, WARD 3, YAMUNANAGAR ./PAN NO: AFSPR8742K / APPELLANT /RESPONDENT /ASSESSEE BY : SH. GAURAV MITTAL, ADVOCATE / REVENUE BY : SH. ASHOK KHANNA, ADDL. CIT & ./ ITA NO. 190 /CHD/2021 / ASSESSMENT YEAR : 2018-19 SANCHI MANAGEMENT SERVICES PRIVATE LIMITED, SCO 387, 2 ND FLOOR, SECTOR 37-D, CHANDIGARH VS. THE ITO, WARD 5(2), CHANDIGARH ./PAN NO: AAKCS7555F / APPELLANT /RESPONDENT /ASSESSEE BY : SH. A.K. JINDAL, CA / REVENUE BY : SH. ASHOK KHANNA, ADDL. CIT % /DATE OF HEARING : 12.10.2021 % / DATE OF PRONOUNCEMENT : 20.10.2021 / ORDER THESE THREE APPEALS BY DIFFERENT ASSESSEES ARE DIRE CTED AGAINST THE SEPARATE ORDERS OF THE CIT(APPEAL), NATIONAL FACELESS APPEA L CENTRE, (NFAC), DELHI DATED ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 2 30.06.2021 IN THE CASE OF M/S SANCHI MANAGEMENT SER VICES PVT. LTD, CHANDIGARH AND EACH DATED 29.7.2021 IN THE CASES OF SH. RAJA RAM, YAMUNA NAGAR. 2. SINCE THE ISSUES INVOLVED ARE COMMON IN THESE AP PEALS AND THE APPEALS WERE HEARD TOGETHER, THEREFORE, THESE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 1 91/CHD/2021 READ AS UNDER:- 1. BECAUSE THE ACTION OF MAKING ADJUSTMENT U/S 143(1) AMOUNTING TO RS 3,80,079.00 FOR PROVIDENT FUND, ESI FOR THE EMPLOYE R CONTRIBUTION DEPOSITED DELAYEDLY, WHILE FACTUAL ASPECT IS THAT O NLY THE EMPLOYER CONTRIBUTION HAS BEEN DEPOSITED DELAYEDLY AND THAT TOO BEFORE THE DATE OF FILING OF THE RETURN OF INCOME ON DT 29.10. 2017 HENCE ACTION UNDER CHALLENGE ON FACTS & LAW. 2. BECAUSE THE ACTION UNDER CHALLENGE BY APPLYING EXPL ANATION 2 U/S 36(VA) AS INSERTED BY THE FINANCE ACT, 2021 W.E.F. 01.04.2021, THIS IS BEING WRONGLY APPLIED RETROSPECTIVELY TO A.Y. 2017- 18 AND HENCE DECISION CONTRARY TO MEMORANDUM, NOTES OF CLAUSES E XPRESSLY STATING THE AMENDMENT APPLICABLE PROSPECTIVELY. 3. BECAUSE THE ACTION UNDER CHALLENGE SINCE THE FACTS, PLEADINGS AND THE PRINCIPALS OF LAW FURNISHED HAVE NOT BEEN EXAMI NED IN ACCORDANCE WITH LAW AS OBLIGATORY TO ASSIGN THE REA SONING THEREON, HENCE CONCLUSION INAPPOSITE TO THE MATERIAL ON RECO RD. 4. BECAUSE THE ACTION FOR MAKING THE ADJUSTMENTS OF RS 3,80,079.00 REGARDING PROVIDENT FUND AND ESI FOR THE EMPLOYER C ONTRIBUTION BY TREATING THE SAME AS INCOME IS THE MISTAKE IN THE P REPARATION, SIGNING AND FILING OF THE TAX AUDIT REPORT BY CHART ERED ACCOUNTANT SH. PARDEEP KUMAR MALHOTRA, PROPRIETOR MALHOTRA DAT TA AND CO ON DT 27.10.2017 HENCE THE ASSESSEE BE NOT PENALIZE D FOR THE MISTAKE OF THE CHARTERED ACCOUNTANT (CBDT CIRCULAR NO. 14(X L-35) OF 1955 DT 11.04.1955). 5. BECAUSE TO GRANT THE CONSEQUENTIAL RELIEF AND OR LE GAL CLAIM AND TO ALLOW AMENDMENT, ADDITION, DELETION IN THE GROUNDS BEFORE THE DISPOSAL OF THE APPEAL WITH A FURTHER PRAYER TO TAK E A DECISION IN ACCORDANCE WITH LAW. ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 3 4. SIMILAR ISSUE IS INVOLVED IN OTHER TWO APPEALS. THE ONLY DIFFERENCE IS IN THE AMOUNT OF DISALLOWANCE MADE BY THE ASSESSING OFFICE R AND SUSTAINED BY THE LD. CIT(A) ON ACCOUNT OF LATE DEPOSIT OF PF & ESI BUT B EFORE FILING THE DUE DATE OF RETURN U/S 139(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTE R REFERRED TO AS ACT). IN THIS CASE THE DISALLOWANCE IN QUESTION HAS BEEN MADE SINCE TH AT THE DEPOSITS OF THE EMPLOYERS CONTRIBUTION ON ACCOUNT OF PF & ESI WAS BEYOND THE STATUTORY TIME LIMIT PROVIDED TO DEPOSIT THOSE CONTRIBUTIONS. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE DISALLOWANCE MADE BY THE A.O. BY FOLL OWING THE AMENDED PROVISIONS IN CLAUSE (VA) TO SUB-SECTION (1) OF SECTION 36 OF THE INCOME TAX ACT, 1961, WHEREIN EXPLANATION 2 HAS BEEN INSERTED TO CLARIFY THAT THE PROVISIONS OF SECTION 43B DOES NOT APPLY AND DEEMED TO NEVER HAVE BEEN APPLIED FOR THE PURPOSES OF DETERMINING THE DUE DATE. NOW THE ASSESSEES ARE IN APPEAL. 6. IN WAS A COMMON CONTENTION OF THE LD. COUNSELS F OR THE ASSESSEES THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED VIDE ORDER DATED 28.9.2021 PASSED BY THE ITAT, JODHPUR BENCH IN ITA NOS.71 & 72/JODH/202 1 FOR THE ASSESSMENT YEARS 2018-19 & 2019-20 IN THE CASE OF M/S RIDHI SIDHI MI LLS (INDIA) PVT LTD. VS. DCIT, BANGLORE. 7. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW AND REITERATED THE OBSERVATIONS M ADE BY THE LD. CIT(A) IN THE IMPUGNED ORDERS. ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 4 8. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 9. IN THE PRESENT CASES, IT IS NOTICED THAT AN IDEN TICAL ISSUE HAVING SIMILAR FACTS HAS ALREADY BEEN ADJUDICATED BY THE ITAT, JODHPUR BENCH IN THE AFORESAID REFERRED TO CASE, WHEREIN THE UNDERSIGNED IS AUTHOR OF THE ORDE R DATED 28.09.2021 AND IT HAS BEEN HELD VIDE PARAS 7 TO 10 IN ITA IN ITA NOS.71 & 72/ JODH/2021 AS UNDER:- 7. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 8. IN THE PRESENT CASES, IT IS NOT IN DISPUTE THAT THE ASSESSEES DEPOSITED THE CONTRIBUTION OF PF & ESI BELATED IN TERMS OF SE CTION 36(1)(VA) OF THE ACT, HOWEVER, THE SAID DEPOSITS WERE MADE PRIOR TO FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. 8.1 IDENTICAL ISSUE WITH THE SIMILAR FACTS HAVE ALR EADY BEEN ADJUDICATED BY THE VARIOUS BENCHES OF THE ITAT. 8.2 IN THE CASE OF HARENDRA NATH BISWAS VS DCIT KOL TAKA, ITA NO. 186/KOL/2021 FOR THE A.Y. 2019-20, SIMILAR ISSUE HA S BEEN DECIDED VIDE ORDER DATED 16.7.2021 BY THE ITAT B BENCH, KOLKA TA. THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 4 OF THE SAID ORDE R, WHICH READ AS UNDER;- 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. FIRST OF ALL WE DO NOT COUNTENANCE THIS ACTION OF THE LD. CIT(A) FOR THE SIMPLE REASON THAT THE EXPLANATION 5 WAS INSERTED BY THE FINANCE ACT, 2021, WITH EFFECT FROM 01.04.2021 AND RELEVANT ASSESSMENT YEAR BEFORE US IS AY 2019-20. THEREFORE THE LAW LAID DOWN BY THE JURISDICTIONAL H ONBLE HIGH COURT WILL APPLY AND SINCE THIS EXPLANATION-5 HAS NOT BEE N MADE RETROSPECTIVELY. SO WE ARE INCLINED TO FOLLOW THE S AME AND WE REPRODUCE THE ORDER OF HONBLE CALCUTTA HIGH COURT IN THE CAS E OF VIJAYSHREE LTD. SUPRA WHEREIN THE HONBLE CALCUTTA HIGH COURT HAS T AKEN NOTE OF THE HONBLE SUPREME COURT DECISION IN CIT VS. ALOM EXTR USION LTD. REPORTED IN 390 ITR 306. THE HONBLE CALCUTTA HIGH COURTS D ECISION IN VIJAYSHREE LTD. SUPRA IS REPRODUCED AS UNDER: THIS APPEAL IS AT THE INSTANCE OF THE REVENUE AND IS DIRECTED AGAINST AN ORDER DATED 28TH APRIL, 2011 PASSED BY T HE INCOME TAX APPELLATE TRIBUNAL, A BENCH, KOLKATA IN ITA NO. 1 091/KOL/2010 ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 5 RELATING TO ASSESSMENT YEAR 2006-07 BY WHICH THE TR IBUNAL DISMISSED THE APPEAL PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF CIT(A). THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AS TO WHE THER THE DELETION OF THE ADDITION BY THE AO ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO ESI AND PF BY INVOKING THE PROVISION OF SECTION 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE ACT WAS CORRECT OR NOT . IT APPEARS THAT THE TRIBUNAL BELOW, IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD., REPORTED IN 2009 VOL.390 ITR 3 06, HELD THAT THE DELETION WAS JUSTIFIED. BEING DISSATISFIED, THE REVENUE HAS COME UP WITH TH E PRESENT APPEAL. AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARIN G 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 T HE AFORESAID CASE HAS HELD THAT THE AMENDMENT TO THE SECOND PROV ISO TO THE SEC 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINAN CE ACT, 2003, WAS CURATIVE IN NATURE AND IS REQUIRED TO BE APPLIE D 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 DEDUCTI BLE BY INVOKING THE AFORESAID AMENDED PROVISIONS OF SECTIO N 43(B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMISS THIS AP PEAL. URGENT XEROX CERTIFIED COPY OF THIS ORDER, IF APPLI ED FOR, BE SUPPLIED TO THE PARTIES SUBJECT TO COMPLIANCE WITH ALL REQUI SITE FORMALITIES. IN THE LIGHT OF THE AFORESAID DISCUSSION WE DO NOT ACCEPT THE LD. CIT(A)S STAND DENYING THE CLAIM OF ASSESSEE SINCE ASSESSEE DELAYED THE EMPLOYEES CONTRIBTION OF EPF & ESI FUND AND AS PER THE BINDIN G DECISION OF THE HONBLE HIGH COURT IN VIJAYSHREE LTD. (SUPRA) U/S 3 6(1)(VA) OF THE ACT SINCE ASSESSEE HAD DEPOSITED THE EMPLOYEES CONTRIBU TION BEFORE FILING OF RETURN OF INCOME. THEREFORE, THE ASSESSEE SUCCEEDS AND WE ALLOW THE APPEAL OF THE ASSESSEE. 9. SIMILAR VIEW HAS BEEN TAKEN BY THE ITAT HYDERAB AD SMC BENCH IN ITA NO. 644/HYD./2020 FOR THE AY 2019-20 IN THE CASE OF SALZGITTER ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 6 HYDRAULICS PRIVATE LTD, HYDERABAD VS ITO VIDE ORDER DT 15.6.2021. THE RELEVANT FINDINGS GIVEN IN PARA 2 OF THE SAID ORDER READ AS UNDER:- 2. COMING TO THE SOLE SUBSTANTIVE ISSUE OF ESI/PF DISALLOWANCE OF RS.1,09,343/- AND RS.3,52,622/-, THE ASSESSEES AND REVENUES STAND IS THAT THE SAME HAS BEEN PAID BEFORE THE DUE DATE OF FILING SEC. 139(1) RETURN AND AFTER THE DUE DATE PRESCRIBED IN THE COR RESPONDING STATUTES; RESPECTIVELY. I NOTICE IN THIS FACTUAL BACKDROP THA T THE LEGISLATURE HAS NOT ONLY INCORPORATED NECESSARY AMENDMENTS IN SECTI ONS 36(VA) AS WELL AS 43B VIDE FINANCE ACT, 2021 TO THIS EFFECT B UT ALSO 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 FORERGOING LEGISLATIVE AMENDMENTS HAVE PROPOSED EMPLOYERS CONTRIBUTIONS; D ISALLOWANCES U/S 43B AS AGAINST EMPLOYEE U/S 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, I HOLD THAT THE IMPUGNED DISALLOWANCE IS NOT SUSTAINABLE IN VIE W OF ALL THESE LATEST DEVELOPMENTS EVEN IF THE REVENUES CASE IS SUPPORTE D BY THE FOLLOWING CASE LAW. (I) CIT VS. MERCHEM LTD, [2015] 378 ITR 443(KER) (II) CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION (2 014) 366 ITR 170 (GUJ.) (III) CIT VS. SOUTH INDIA CORPORATION LTD. (2000) 242 I TR 114 (KER) (IV) CIT VS. GTN TEXTILES LTD. (2004) 269 ITR 282 (KER) (V) CIT VS. JAIRAM & SONS [2004] 269 ITR 285 (KER) THE IMPUGNED ESI/PF DISALLOWANCE IS DIRECTED TO BE DELETED THEREFORE. 10. ON AN IDENTICAL ISSUE, THIS BENCH OF THE TRIBUN AL VIDE ORDER DATED 12.8.2021 IN THE CASE OF MOHANGARH ENGINEERS AND CO NSTRUCTION COMPANY, JODHPUR & OTHERS VS CPC, BANGLORE IN ITA NO. 5/JODH /2021 AND OTHERS HELD VIDE PARA 13 TO 18 AS UNDER:- 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE DETAILS SUBM ITTED BY THE ASSESSEE AS PART OF ITS RETURN OF INCOME, IT IS NOTED THAT THE ASSESSEE HAS DEPOSITED THE EMPLOYEESS CONTRIBUTION TOWARDS ESI AND PF WELL BE FORE 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 R ETURN FOR THE IMPUGNED ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 7 ASSESSMENT YEAR 2019-20 WAS 31.10.2019 AND THE RETU RN OF INCOME WAS ALSO FILED ON THE SAID DATE. ADMITTEDLY AND UNDISP UTEDLY, THE EMPLOYEESS CONTRIBUTION TO ESI AND PF WHICH HAVE BEEN COLLECTE D 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 SE RIES OF DECISIONS RENDERED BY THE HONBLE RAJASTHAN HIGH COURT STARTI NG FROM CIT VS. STATE BANK OF BIKANER & JAIPUR (SUPRA) AND SUBSEQUENT DEC ISIONS. 15. IN THIS REGARD, WE MAY REFER TO THE INITIAL DEC ISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. STATE BANK OF BIKANER & JAIPUR WHEREIN THE HONBLE HIGH COURT AFTER EXTENSIVELY EX AMINING THE MATTER AND CONSIDERING THE VARIOUS DECISIONS OF THE HONBL E SUPREME COURT AND VARIOUS OTHER HIGH COURTS HAS DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE. IN THE SAID DECISION, THE HONBLE HIGH C OURT WAS PLEASED TO HELD AS UNDER: 20. ON PERUSAL OF SEC.36(1)(VA) AND SEC.43(B)(B) A ND 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 RIG HTLY 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 F OLLOWED BY THE ASSESSEES IN CLAIMING THE DEDUCTION I.E. ACCRUAL BA SIS AND THE SAME WAS BEING ALLOWED, AS THE LIABILITY DID EXIST BUT T HE SAID AMOUNT THOUGH CLAIMED AS A DEDUCTION WAS NOT BEING DEPOSIT ED EVEN AFTER LAPSE OF SEVERAL YEARS. THEREFORE, TO PUT A CHECK O N THE SAID CLAIMS/DEDUCTIONS HAVING BEEN MADE, THE SAID PROVIS ION WAS BROUGHT IN TO CURB THE SAID ACTIVITIES AND WHICH WA S 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 FR OM 01/04/1988, THE WORDS NUMBERED AS CLAUSE (A), (C), (D), (E) AND (F), ARE OMITTED FROM THE ABOVE PROVISO AND, FURTHER MORE SECOND PRO VISO WAS REMOVED BY FINANCE ACT, 2003 THEREFORE, THE DEDUCTI ON 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 EX PLANATION APPENDED TO SECTION 36(1)(VA) OF THE ACT FURTHER EN VISAGE THAT THE AMOUNT ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE T HE DUE DATE ADMISSIBLE AT THE TIME OF SUBMITTING RETURN OF THE INCOME UNDER SECTION 139 OF THE ACT IN RESPECT OF THE PREVIOUS Y EAR CAN BE ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 8 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. ACCORDING LY, CONTENTION OF COUNSEL FOR THE REVENUE IS NOT TENABLE FOR THE R EASON AFORESAID THAT DEDUCTIONS OUT OF THE GROSS INCOME FOR PAYMENT OF TAX AT THE TIME OF SUBMISSION OF RETURN UNDER SECTION 139 IS P ERMISSIBLE ONLY IF THE STATUTORY LIABILITY OF PAYMENT OF PF OR OTHE R CONTRIBUTION REFERRED TO IN CLAUSE (B) ARE PAID WITHIN THE DUE D ATE UNDER THE RESPECTIVE ENACTMENTS BY THE ASSESSEES AND NOT UNDE R THE DUE DATE OF FILING OF RETURN. 22. WE HAVE ALREADY OBSERVED THAT TILL THIS PROVISI ON WAS BROUGHT IN AS THE DUE AMOUNTS ON ONE PRETEXT OR THE OTHER W ERE NOT BEING DEPOSITED BY THE ASSESSEES THOUGH SUBSTANTIAL BENEF ITS HAD BEEN OBTAINED BY THEM IN THE SHAPE OF THE AMOUNT HAVING BEEN CLAIMED AS A DEDUCTION BUT THE SAID AMOUNTS WERE NOT DEPOSI TED. IT IS PERTINENT TO NOTE THAT THE RESPECTIVE ACT SUCH AS P F ETC. ALSO PROVIDES THAT THE AMOUNTS CAN BE PAID LATER ON SUBJ ECT TO PAYMENT OF INTEREST AND OTHER CONSEQUENCES AND TO GET BENEF IT 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 RESPECTI VE 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 FOLLOWE D IN CIT VS. JAIPUR VIDYUT VITRAN NIGAM LTD. (SUPRA), CIT VS. UDAIPUR D UGDH UTPADAK SAHAKARI SANGH LTD. (SUPRA), AND CIT VS RAJASTHAN S TATE BEVERAGES CORPORTATION LIMITED (SUPRA). IN ALL THESE DECISIO NS, IT HAS BEEN CONSISTENTLY HELD THAT WHERE THE PF AND ESI DUES AR E 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 HONBLE RAJASTHAN HIGH COURT B UT HAS DECIDED TO FOLLOW THE DECISIONS RENDERED BY THE HONBLE DELHI, MADRAS, GUJARAT AND KERALA HIGH COURTS. GIVEN THE DIVERGENT VIEWS TAKE N BY THE VARIOUS HIGH COURTS AND IN THE INSTANT CASE, THE FACT THAT THE J URISDICTION OVER THE ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 9 ASSESSING OFFICER LIES WITH THE HONBLE RAJASTHAN H IGH COURT, IN OUR CONSIDERED VIEW, THE LD CIT(A) OUGHT TO HAVE CONSID ERED 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 ENT IRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION BY WAY OF A DJUSTMENT WHILE PROCESSING THE RETURN OF INCOME U/S 143(1) AMOUNTIN G TO RS 4,38,530/- SO MADE BY THE CPC TOWARDS THE DELAYED DEPOSIT OF THE EMPLOYEESS CONTRIBUTION TOWARDS ESI AND PF THOUGH PAID WELL BE FORE 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 SECT ION 43B READ WITH SECTION 36(1)(VA) OF THE ACT IN VIEW OF THE BINDING DECISIONS OF THE HONBLE RAJASTHAN HIGH COURT. 11. SINCE THE FACTS OF THE PRESENT CASES ARE IDENTI CAL TO THE FACTS INVOLVED IN THE AFORESAID REFERRED TO CASES, THEREFORE RESPE CTFULLY FOLLOWING THE EARLIER ORDERS AS REFERRED TO HEREIN ABOVE OF THE D IFFERENT BENCHES OF THE ITAT, THE IMPUGNED ADDITIONS MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) ON ACCOUNT OF DEPOSITS OF EMPLOYE ES CONTRIBUTION OF ESI & PF PRIOR TO FILING OF THE RETURN OF INCOME U/S 13 9(1) OF THE ACT, IN BOTH THE YEARS UNDER CONSIDERATION PRIOR TO THE AMENDMENT MA DE BY THE FINANCE ACT, 2021 W.E.F. 1.4.2021 VIDE EXPLANATION 5, ARE D ELETED. 12. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE S ARE ALLOWED. 10. SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRE D TO ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL, THE DISALLOWANCES SUSTAINED BY THE LD. CIT(A) ARE DELETED. 11. IN THE RESULT, THE APPEALS OF THE ASSESSE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.202 1. SD/- ( . . / N.K. SAINI) !' / VICE PRESIDENT DATED : 20.10.2021 ITA NOD. 191, 192-190-C-21 SH. RAJA RAM, YAMUNANAGAR & ORS 10 .. ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / / CIT 4. / ( )/ THE CIT(A) 5. - 2 , % 2 , 4 / DR, ITAT, CHANDIGARH 6. / GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR