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Deduction on actual payment - Payments towards PF and ESI
January, 28th 2008

CIT vs Dharmendra Sharma
Citation 213 CTR 609 
Followed CIT vs Vinay Cement Ltd.
213 CTR 268; 

Deduction on actual payment - Payments towards PF and ESI 
The payments towards PF and ESI were made before the filing return but after a few days of the grace period. The Tribunal was right in deleting the disallowance. No substantial question of law involved.

High Court of Delhi

CIT vs Dharmendra Sharma

IT Appeal No. 644 of 2007

Madan B. Lokur and S. Muralidhar, JJ

28 November 2007

P.L. Bansal for the Appellant
Rakesh Gupta with Poonam Ahuja for the Respondent


By the Court

The Revenue is aggrieved by an order dt. 12th Oct., 2006 passed by the Income-tax Appellate Tribunal, Delhi Bench 'F', New Delhi ('the Tribunal') in ITA No. 2413/Del/2004 relevant for the asst. yr. 2001-02. The case relates to the addition of an amount of Rs. 10,37,737 and Rs. 1,88,172 made by the AO on account of delayed payment of provident fund and Employees State Insurance respectively. According to the assessee, the amount was paid within 2 to 4 days after the grace period provided under s. 43B of the IT Act, 1961 ('the Act') but before filing the return. According to the assessee, it was at best a technical default.

2. The AO did not accept the view of the assessee and the Commissioner of Income-tax (Appeals) [CIT(A)] upheld the view of the AO. However, the Tribunal has reversed the decision of the CIT(A).

3. Learned counsel for the assessee has placed before us a decision of the Gauhati High Court in CIT vs. George Williamson (Assam) Ltd. (2006) 284 ITR 619 (Gau). This decision was taken in appeal before the Supreme Court and by an order dt. 7th March, 2007 [reported as CIT vs. Vinay Cement Ltd. (2007) 213 CTR (SC) 268Ed.], the Supreme Court observed that it was concerned with the law as it stood prior to the amendment of s. 43B of the Act. The assessee was entitled to claim the benefit provided under s. 43B of the Act for that period particularly in view of the fact that he had contributed to provident fund before filing the return. Accordingly, the SLP filed by the Revenue against the decision of Gauhati High Court was dismissed.

4. The decision of the Supreme Court is fully applicable to the facts of the present case in view of what we have already mentioned above.

5. Under the circumstances, no substantial question of law arises for our consideration.

6. The appeal is dismissed.

7. IT Appeal Nos. 642 of 2004, 644 of, 2004, 717 of 2004 and 497 of 2005 which raise a similar issue be listed for directions on 29th Nov., 2007, so that they can be disposed of in terms of today's order.

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