Case Law Details
Case Name : ACIT Vs M/s. Shakti Bhog Foods Pvt. Ltd. (ITAT Delhi)
Related Assessment Year : 1999-00, 2000-01, 2001-02, 2003-04, 2004-05
Courts :
All ITAT ITAT Delhi
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As soon as employees’ contribution towards PF or ESI is received by the assessee by way of deduction or otherwise from the salary/wages of the employees, it will be treated as ‘income’ at the hands of the assessee. It clearly follows there from that If the assessee does not deposit this contribution with PF/ESI authorities, it will be taxed as Income at the hands of the assessee. However, on making deposit with the concerned authorities, the assessee becomes entitled to deduction under the provisions of s. 36(1)(va). Sec. 43B(b),
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Sir, hence if a assessee deposit provident fund amount after due date of PF Act and ESI act but before the due date of filling of return u/s 139(1) ,Assessed will be liable for deduction U/s 36(1)(Va) of i tax -AY 2017-18
Since in Section 36(1)(Va) , due date means date of PF act and ESI act. The order of high court in AIMIL and kichha sugar Co Ltd will be in force. And while making tax audit these judgements are considered.
Sir, hence if a assessee deposit provident fund amount after due date of PF Act and ESI act but before the due date of filling of return u/s 139(1) ,Assessed will be liable for deduction U/s 36(1)(Va) of i tax -AY 2017-18
Good Judgement .
CA. Subhash Chandra Podder , FCA
Kolkata
08/08/2012
The correctness of the decision to the extent it relates to beleted payment of Employees’ contribution to PF, is very much doubtful, for
1) it overlooks S.2 (24) (x) which provides that Income includes, “any sum received by the assessee from his employees as contributions to any provident fund or superannuation fund or any fund set up under the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), or any other fund for the welfare of such employees” ;
2) it overlooks the clear distinction between belated payments of the Employer’s own contribution, and of the Employees’ Contribution.
For a more detailed and acceptable discussion, see THE INCOME TAX APPELLATE TRIBUNAL BENCH ‘B’ KOLKATA decision in ITA No.1255/Kol/2010- Assessment Year: 2007-2008 -DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, KOLKATA Vs M/s ASHIKA STOCK BROKING LTD PAN NO:AACCA7156Q C.O.No. 112(Kol)/2010; ITA No.1255(Kol)/2010