M/s Supermech Infrastructure Private Limited, Mohali V. ITO-Ward-2(1), Chandigarh

ITA 221/CHANDI/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2762 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2019-2020
• Appeal Filed On: 10-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Assessee Lawyers: B M MONGA
• Keywords: Business expenditure; Opportunity of being heard; Question of law
• Section: 43B; 143(1); 191; 139(1); 43; 13; 37; 139

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH (VIRTUAL COURT) .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.221/CHD/2021 ASSESSMENT YEAR : 2019-20 M/S SUPERMECH INFRASTRUCTURE PRIVATE LIMITED, OFFICE SPACE NO. 327D(1), 3 RD FLOOR, GLOBAL BUSINESS PARK, CHANDIGARH AMBALA HIGHWAY, ZIRAKPUR, MOHALI, PUNJAB-143603 I . ADIT, CPC, BANGALORE AND II. JURISDICTIONA L A.O.-ITO, WARD 2(1), CHANDIGARH PAN NO: AAVCS5070Q APPELLANT RESPONDENT !' ASSESSEE BY : SHRI B.M. MONGA, ADVOCATE & SHRI RO HIT KAURA, ADVOCATE #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 21/10/2021 '()*! & DATE OF PRONOUNCEMENT : 21/10/2021 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 14/07/2021 OF THE LD. CIT(A), NATIONAL FACELESS APPEAL CENTRE (NFAC), DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L. 1. THAT THE ORDER OF LD. CIT(A) IS AGAINST THE LAW AND FACTS OF THE CASE. 2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ILLEGAL INTIMATION ORDER PASSED U/S 143(1) BY THE AO, CPC, BANGALORE WHEREBY DISALLOWANCE OF RS. 22,96,603/- HAS BEEN MADE OF THE PAYMENTS MADE TOWA RDS EPF AND ESI, CONTRARY TO THE STATUTORY PROVISIONS AS WELL AS, WELL SETTLE D LAW LAID DOWN BY THE HON'BLE SUPREME COURT AND HON'BLE JURISDICTIONAL HIGH COURT . 3. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE INTIMATION ORDER PASSED U/S 143(1) BY THE AO, CPC, BANGALORE WITHOUT APPRECIATING THE FACT THAT INTIMATION ORDER IS WITHOUT PROPER JURISDICTION, PA SSED WITHOUT PROPER AND 2 REASONABLE OPPORTUNITY OF BEING HEARD & BEYOND THE SCOPE AND POWERS ENSHRINED U/S 143(1). 4. THAT THE LD. CIT(A), HAS GROSSLY ERRED IN DISMISSIN G THE APPEAL OF THE ASSESSEE BY APPLYING THE AMENDMENT IN LAW RETROSPEC TIVELY, WHEREAS THE SAID AMENDMENT IS APPLICABLE FROM 1.4.2021 AND NOT APPLI CABLE TO THE YEAR UNDER CONSIDERATION AS INTERPRETED BY VARIOUS HON'BLE COU RTS. 5. WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF APPEA L AND STRICTLY IN THE ALTERNATIVE, THE LD. CIT(A), HAS GROSSLY ERRED IN NOT ALLOWING T HE DEDUCTION OF GENUINE AND LEGITIMATE BUSINESS EXPENDITURE DULY AL LOWABLE UNDER SECTION 37 OF THE INCOME TAX ACT. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DISPOSED OFF . 3. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO TH E DISALLOWANCE OF RS. 22,96,603/- MADE BY THE A.O. ON ACCOUNT OF LATE PAY MENTS TOWARDS EPF AND ESI UNDER SECTION 36(1)(VA) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), HOWEVER, BEFORE FURNISHING THE RETURN OF INCOME UND ER SECTION 139(1) OF THE ACT. WHEN THE MATTER WAS TAKEN TO THE LD. CIT(A) THE SAI D ADDITION WAS SUSTAINED. 4. NOW THE ASSESSEE IS IN APPEAL. 5. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESS EE WAS 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 RIDHISIDHI MIL LS (INDIA) PVT LTD. VS. DCIT, BANGLORE. 6. 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 ORDER. 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3 8. IN THE PRESENT CASES, IT IS NOTICED THAT AN IDEN TICAL ISSUE HAVING SIMILAR FACTS HAS ALREADY BEEN ADJUDICATED BY THE ITAT, JODHPUR B ENCH IN THE AFORESAID REFERRED TO CASE, WHEREIN THE UNDERSIGNED IS AUTHOR OF THE ORDER DATED 28.09.2021 AND IT HAS BEEN HELD VIDE PARAS 7 TO 10 IN ITA IN ITA NOS.71 & 72/JODH/2021 IN CASE OF M/S RIDHI SIDHI MILLS (INDI A) PVT. LTD. VS. DCIT, BANGLORE 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 SECTIO N 36(1)(VA) OF THE ACT, HOWEVER, THE SAID DEPOSITS WERE MADE PRIOR TO FILING OF RETURN OF IN COME 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 HARENDRANATHBISWASVS DCIT KOLTAK A, ITA NO. 186/KOL/2021 FOR THE A.Y. 2019-20, SIMILAR ISSUE HAS BEEN DECIDED VIDE O RDER DATED 16.7.2021 BY THE ITAT B BENCH, KOLKATA. THE RELEVANT FINDINGS HAVE BEEN GI VEN IN PARA 4 OF THE SAID ORDER, 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 S IMPLE 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 HONBLE HIGH COURT WILL APPLY AND SINCE THIS EXPLAN ATION-5 HAS NOT BEEN MADE RETROSPECTIVELY. SO WE ARE INCLINED TO FOLLOW THE S AME AND WE REPRODUCE THE ORDER OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF VIJAYSHR EE LTD. SUPRA WHEREIN THE HONBLE CALCUTTA HIGH COURT HAS TAKEN NOTE OF THE HONBLE S UPREME COURT DECISION IN CIT VS. ALOM EXTRUSION LTD. REPORTED IN 390 ITR 306. THE HO NBLE CALCUTTA HIGH COURTS DECISION 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 THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, KOLKATA IN ITA NO. 1091/KOL/2010 RELATING TO ASSESSMENT YEAR 2006- 07 BY WHICH THE TRIBUNAL DISMISSED THE APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER O F 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 EXTRUSI ON LTD., REPORTED IN 2009 VOL.390 ITR 306, HELD THAT THE DELETION WAS JUSTIFIED. BEING DISSATISFIED, THE REVENUE HAS COME UP WITH TH E PRESENT APPEAL. 4 AFTER HEARING MR.SINHA, LEARNED ADVOCATE, APPEARING ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COU RT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD., WE FIND THAT TH E SUPREME COURT IN THE AFORESAID CASE HAS HELD THAT THE AMENDMENT TO THE SECOND PROVISO T O THE SEC 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATI VE 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 AFOR ESAID 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. URGENT XEROX CERTIFIED COPY OF THIS ORDER, IF APPLI ED FOR, BE SUPPLIED TO THE PARTIES SUBJECT TO COMPLIANCE WITH ALL REQUISITE 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 EM PLOYEES CONTRIBTION OF EPF & ESI FUND AND AS PER THE BINDING DECISION OF THE HONBLE HIGH COURT IN VIJAYSHREE LTD. (SUPRA) U/S 36(1)(VA) OF THE ACT SINCE ASSESSEE HAD DEPOSITED T HE EMPLOYEES CONTRIBUTION 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 SA LZGITTER HYDRAULICS PRIVATE LTD, HYDERABAD VS ITO VIDE ORDER DT 15.6.2021. THE RELEV ANT 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 I S THAT THE SAME HAS BEEN PAID BEFORE THE DUE DATE OF FILING SEC. 139(1) RETURN AND AFTER THE DUE DATE PRESCRIBED IN THE CORRESPONDING STATUTES; RESPECTIVELY. I NOTICE IN T HIS FACTUAL BACKDROP THAT THE LEGISLATURE HAS NOT ONLY INCORPORATED NECESSARY AMENDMENTS IN S ECTIONS 36(VA) AS WELL AS 43B VIDE FINANCE ACT, 2021 TO THIS EFFECT BUT ALSO THE CBDT HAS ISSUED MEMORANDUM OF EXPLANATION THAT THE SAME APPLIES W.E.F. 1.4.2021 O NLY. IT IS FURTHER NOT AN ISSUE THAT THE FORERGOING LEGISLATIVE AMENDMENTS HAVE PROPOSED EMP LOYERS CONTRIBUTIONS; DISALLOWANCES U/S 43B AS AGAINST EMPLOYEE U/S 36 (V A) OF THE ACT; RESPECTIVELY. HOWEVER, KEEPING IN MIND THE FACT THAT THE SAME HAS BEEN CLA RIFIED TO BE APPLICABLE ONLY WITH PROSPECTIVE EFFECT FROM 1.4.2021, I HOLD THAT THE I MPUGNED DISALLOWANCE IS NOT SUSTAINABLE IN VIEW OF ALL THESE LATEST DEVELOPMENT S EVEN IF THE REVENUES CASE IS SUPPORTED 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) 5 THE IMPUGNED ESI/PF DISALLOWANCE IS DIRECTED TO BE DELETED THEREFORE. 10. ON AN IDENTICAL ISSUE, THIS BENCH OF THE TRIBUNA L VIDE ORDER DATED 12.8.2021 IN THE CASE OF MOHANGARH ENGINEERS AND CONSTRUCTION COMPAN Y, JODHPUR & OTHERS VS CPC, BANGLORE IN ITA NO. 5/JODH/2021 AND OTHERS HELD VID E 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 SUBMITTED BY THE A SSESSEE AS PART OF ITS RETURN OF INCOME, IT IS NOTED THAT THE ASSESSEE HAS DEPOSITED THE EMPLOYEESS CONTRIBUTION TOWARDS ESI AND PF WELL BEFORE THE DUE DATE OF FILING OF RE TURN OF INCOME U/S 139(1) AND THE LAST OF SUCH DEPOSITS WERE MADE ON 16.04.2019 WHEREAS DUE D ATE OF FILING THE RETURN 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 UNDISPUTEDL Y, THE EMPLOYEESS CONTRIBUTION TO ESI AND PF WHICH HAVE BEEN COLLECTED BY THE ASSESSEE FR OM ITS EMPLOYEES HAVE THUS BEEN DEPOSITED WELL BEFORE THE DUE DATE OF FILING OF RET URN 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 STARTING FROM CIT VS. STATE BANK OF BIKANER & JAIPUR (SUPRA) AND SUBSEQUENT DECISIONS. 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 W HEREIN THE HONBLE HIGH COURT AFTER EXTENSIVELY EXAMINING THE MATTER AND CONSIDERING TH E VARIOUS DECISIONS OF THE HONBLE SUPREME COURT AND VARIOUS OTHER HIGH COURTS HAS DEC IDED 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) AN D 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 DEDUCT ION OF GPF, CPF, ESI ETC. AS PER THE SYSTEM FOLLOWED BY THE ASSESSEES IN CLAIMING THE DE DUCTION 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 LAPS E OF SEVERAL YEARS. THEREFORE, TO PUT A CHECK ON THE SAID CLAIMS/DEDUCTIONS HAVING BEEN M ADE, THE SAID PROVISION 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. (S UPRA). 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 , FURTHER MORE SECOND PROVISO 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 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 S ECTION 139 OF THE ACT IN RESPECT OF THE PREVIOUS YEAR CAN BE CLAIMED BY THE ASSESSEE FOR DE DUCTION 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 SE C. 43B WOULD BECOME OBSOLETE. ACCORDINGLY, CONTENTION OF COUNSEL FOR THE REVENUE IS NOT TENABLE FOR THE REASON AFORESAID THAT DEDUCTIONS OUT OF THE GROSS INCOME F OR PAYMENT OF TAX AT THE TIME OF SUBMISSION OF RETURN UNDER SECTION 139 IS PERMISSIB LE ONLY IF THE STATUTORY LIABILITY OF 6 PAYMENT OF PF OR OTHER CONTRIBUTION REFERRED TO IN CLAUSE (B) ARE PAID WITHIN THE DUE DATE UNDER THE RESPECTIVE ENACTMENTS BY THE ASSESSE ES AND NOT UNDER 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 WERE NOT BEING DEPOSITE D BY THE ASSESSEES THOUGH SUBSTANTIAL BENEFITS HAD BEEN OBTAINED BY THEM IN T HE SHAPE OF THE AMOUNT HAVING BEEN CLAIMED AS A DEDUCTION BUT THE SAID AMOUNTS WE RE NOT DEPOSITED. IT IS PERTINENT TO NOTE THAT THE RESPECTIVE ACT SUCH AS PF ETC. ALSO P ROVIDES THAT THE AMOUNTS CAN BE PAID LATER ON SUBJECT TO PAYMENT OF INTEREST AND OTHER C ONSEQUENCES 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 DE POSIT 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 U NDER SECTION 36(1)(VA) OF THE IT ACT. 16. THE SAID DECISION HAS SUBSEQUENTLY BEEN FOLLOWE D IN CIT VS. JAIPUR VIDYUTVITRAN NIGAM LTD. (SUPRA), CIT VS. UDAIPUR DUGDHUTPADAKSAH AKARISANGH LTD. (SUPRA), AND CIT VS RAJASTHAN STATE BEVERAGES CORPORTATION LIMITED (SUP RA). IN ALL THESE DECISIONS, IT HAS BEEN CONSISTENTLY HELD THAT WHERE THE PF AND ESI DU ES ARE PAID AFTER THE DUE DATE UNDER THE RESPECTIVE STATUES BUT BEFORE FILING OF THE RET URN OF INCOME UNDER SECTION 139(1), THE SAME CANNOT BE DISALLOWED UNDER SECTION 43B READ WI TH 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 BUT HAS DECIDED TO FOLLOW THE DECISIONS RENDERED BY THE HONBLE DELHI, MADRAS, GUJARAT AND KERALA HIGH COUR TS. 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 HONBLE RAJASTHAN H IGH COURT, IN OUR CONSIDERED VIEW, THE LD CIT(A) OUGHT TO HAVE CONSIDERED AND FOLLOWED THE DE CISION OF THE JURISDICTIONAL RAJASTHAN HIGH COURT, AS EVIDENT FROM SERIES OF DEC ISIONS 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 ADJUSTMENT WHILE P ROCESSING THE RETURN OF INCOME U/S 143(1) AMOUNTING TO RS 4,38,530/- SO MADE BY THE CP C TOWARDS THE DELAYED DEPOSIT OF THE EMPLOYEESS CONTRIBUTION TOWARDS ESI AND PF THO UGH 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 WI TH SECTION 36(1)(VA) OF THE ACT IN VIEW OF THE BINDING DECISIONS OF THE HONBLE RAJAST HAN HIGH COURT. 11. SINCE THE FACTS OF THE PRESENT CASES ARE IDENTI CAL TO THE FACTS INVOLVED IN THE AFORESAID REFERRED TO CASES, THEREFORE RESPECTFULLY FOLLOWING THE EARLIER ORDERS AS REFERRED TO HEREIN ABOVE OF THE DIFFERENT BENCHES OF THE ITA T, THE IMPUGNED ADDITIONS MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT( A) ON ACCOUNT OF DEPOSITS OF EMPLOYEES CONTRIBUTION OF ESI & PF PRIOR TO FILIN G OF THE RETURN OF INCOME U/S 139(1) OF THE ACT, IN BOTH THE YEARS UNDER CONSIDERATION PRIOR TO THE AMENDMENT MADE 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. 7 RELIANCE WAS ALSO PLACED ON THE FOLLOWING CASE LAWS : RAJA RAM VS. ITO IN ITA NOS. 191 & 192/CHD/2021 VID E ORDER DT. 20/10/2021 (CHD TRIB) SANCHI MANAGEMENT SERVICES PRIVATE LIMITED VS. THE ITO IN ITA NO. 190/CHD/2021 VIDE ORDER DT. 20/10/2021 (CHD TRIB) 9. SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL, THE DISALLOWANCES SUSTAINED BY THE LD. CIT(A) ARE DELETED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. (ORDER PRONOUNCED IN THE VIRTUAL COURT ON 21/10/20 21) SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 21/10/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE