Income Tax Appellate Tribunal - Delhi
Metzeler Automotive Profiles India (P) ... vs Department Of Income Tax on 12 September, 2011
IN THE INCOME TAX APPELLATE TRIBUNAL Delhi 'E' BENCH
Before Shri A.D.Jain,, JM & Shri A.N. Pahuja, AM
ITA No.3509/Del/2011
Assessment Year:2005-06
ITO W ard-6(4),Room V/s. Metzeler Automotive
no.418,CR Building, IP Profiles India (P)
Estate,New Delhi Ltd.,301-302,Tolstoy
[PAN:AAACW0019N] House,15,Tolstoy
Marg,New Delhi
(Appellant) .. (Respondent)
Assessee by :- Shri P.N.Mehta,AR
Revenue by:- Shri R.S.Negi, DR
Date of Hearing:- 12-09-2011
Date of Pronouncement:- 12-09-2011
ORDER
A.N.Pahuja:-
This appeal by the Revenue filed on 13.7.2001 against an order dated 28.2.2011 of the ld. CIT (Appeals)-IX, New Delhi, raises the following grounds:-
1. "The order of the Ld. CIT(A) is erroneous and contrary to facts and Law.
2. On the facts and in the circumstances of the case and in law, the ld.CIT(A) has erred in deleting the addition of Rs.23,85,452/-
made u/s 2(24)(x) of the Act being the late deposit of employees' contribution of ESI & PF.
3. The learned CIT(A) ignored the finding recorded by the Assessing Officer and the fact that the late deposit of employees contribution towards ESI & EPF is not covered u/s 43B of the Act and is deemed income of the employer and is covered u/s 2(24)(x) of the Act.
4. The appellant craves leave to add, to alter, or amend any grounds of the appeal raised above at the time of hearing."
22. Facts, in brief, as relevant orders are that return declaring nil income filed on 30th October, 2007 by the assessee,manufacturing and trading weather strips, was selected for scrutiny with the service of a notice u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the Act). During the course of assessment proceedings, the Assessing Officer[AO in short] noticed that the assessee deposited following amount of employee's contribution towards PF belatedly:
Contribution Due date of Actual date Amount in
for the deposit of deposit `
months.
March,2006 15.04.2006 06.05.2006 6,512/-
March, 006 15.04.2006 18.05.2006 40,329/-
April, 2006 15.05.2006 22.05.2006 5,03,064/-
June, 2006 15.07.2006 25.07.2006 22,948/-
Apr-May, 15.06.2006 21.07.2006 30,313/-
2006
July, 2006 15.08.2006 19.08.2006 5,38,576/-
July, 2006 15.08.2006 19.08.2007 29,128/-
Sep, 2006 15.10.2006 16.10.2007 25,162/-
Feb,2007 15.03.2007 16.03.2007 5,75,340/-
Feb, 2007 15.03.2007 16.03.2007 34,467/-
March, 2007 15.04.2007 16.04.2007 5,79,613/-
Total 23,85,452/-
2.1 Since the aforesaid contribution was deposited beyond the due date
stipulated under the PF Act, the AO disallowed the amount of Rs.23,85,454/- in terms of provisions of section 2(24)(x) of the Act.
3. On appeal, the learned CIT(A) allowed the claim of the assessee in terms of decision of Hon'ble jurisdictional High Court in CIT Vs. ALMIL Ltd., 321 ITR 508 (Delhi); CIT Vs. Dharmendra Sharma,297 ITR 320 (Delhi) and CIT Vs. P.M. Electronics Ltd. , 313 ITR 161 (Delhi).
4. The Revenue is now in appeal before us against the aforesaid findings of the ld. CIT(Appeals). The ld. DR supported the order of the AO while the ld. AR on behalf of assessee relied upon the decisions of Hon'ble Supreme Court in the case of CIT v. Alom Extrusions Ltd.(2009) 319 ITR 306 (SC) and CIT vs. Vinay Cement Ltd.,213CTR 268(SC) besides decisions in CIT vs. Dharmendra 3 Sharma,297 ITR 320(Del),CIT vs. PM Electronics Ltd.,313 ITR 161(Del.)and Almil Ltd.& others (supra).
5. We have heard both the parties and gone through the facts of the case as also the aforesaid decisions. As regards employer's and employees' contribution towards PF , Hon'ble Delhi High Court in the case of CIT v. P.M.Electronics Ltd., 220 CTR 635 (Delhi) while relying upon the decision of Hon'ble Apex Court in the case of CIT Vs. Vinay Cement Ltd.,213 CTR (SC) 268 , concurred with the view taken by the Hon'ble Madras High Court in Nexus Computer (P) Ltd.,219 CTR(Mad) 54 that employer/employees' contribution towards provident fund payments made after the due date prescribed under the Employees' Provident Fund Act and Rules made thereunder and before the due date for furnishing the return of income under sub sec. 1 of sec. 139 of the Act, are allowable under s.36(1)(va) read with sec. 2(24(x) and sec. 43B of the Act.
5.1 Moreover, recently Hon'ble Apex Court in the case of CIT vs Alom Extrusions Ltd., 319 ITR 306 (SC) held that the omission of the second proviso to section 43B of the Act by the Finance Act, 2003, operated, retrospectively, with effect from, April 1, 1988 and not prospectively from April 1, 2004. Hon'ble Court observed that earlier under the second proviso to section 43B as amended by the Finance Act, 1989, the assessees were entitled to deduction only if the contribution stood credited on or before the due date given in the Provident Funds Act. This created further difficulties and on a representation made to the Finance Ministry, one more amendment was made by the Finance Act, 2003. Though this amendment was made applicable with effect from April 1, 2004, the amendment was curative in nature and applied retrospectively with effect from April 1, 1988.It was clarified that when a proviso in a section is inserted to remedy unintended consequences and to make the section workable, the proviso which supplies an obvious omission therein is required to be read retrospectively in operation, particularly to give effect to the section as a whole.
45.2 Hon'ble Karnataka High Court in their decision in ANZ Information Technology P Ltd., 318 ITR 123 while following their earlier decision in CIT vs. Sabari Enterprises,298 ITR 141(Kar.) concluded that deposits made by the employer of the employees' contribution belatedly and contribution towards ESI & PF under the relevant enactments can not be treated as income of the assessee u/s 36(1)(va) read with sec. 2(24)(x) in view of provisions of sec. 43B of the Act.
5.3 Hon'ble Delhi High Court in another decision dated 23.12.2009 in CIT Vs. AIMIL Ltd.(Delhi)in ITA no. 1063/2008, now reported in 321 ITR 508 observed that sec. 2(24)(x) provides that amounts received by an assessee from employees towards PF contributions etc. shall be "income". S. 36 (1) (va) provides that if such sums are contributed to the employees account in the relevant fund on or before the due date specified in the PF legislation, the assessee shall be entitled to a deduction. The second Proviso to s. 43B (b) provided that any sum paid by the assessee as an employer by way of contribution to any provident fund shall be allowed as a deduction only if paid on or before the due date specified in 36(1)(va) of the Act. After the omission of the second Proviso w.e.f 1.4.2004, the deduction is allowable under the first Proviso if the payment is made on or before the due date for furnishing the return of income. The Hon'ble High Court while considering whether the benefit of s. 43B can be extended to employees' contribution as well, which are paid after the due date under the PF law but before the due date for filing the return, held that
(i) Though the Revenue has argued that a distinction is to be made between "employers' contribution" and "employees' contribution" and that employees' contribution being in the nature of trust money in the hands of the assessee cannot be allowed as a deduction if not paid on or before the due date specified in the PF etc law, the scheme of the Act is that employees' contribution is treated as income u/s 2 (24) (x) on receipt by the assessee and allowed as a deduction u/s 36 (1) (va) on making deposit with the concerned authorities. S. 43B (b) stipulates that such deduction would be permissible only on actual payment;
(ii) The question as to when actual payment should be made is answered by Vinay Cements 213 CTR 268 where the deletion of the second Proviso to s. 43B w.e.f 1.4.2004 was held applicable to earlier years as well. As the deletion of the 2nd Proviso is retrospective, the case has to be governed by the first Proviso. Dharmendra Sharma 297 ITR 320 (Del) & P.M. Electronics 313 ITR 161 (Delhi) followed;
5(iii) If the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down in Vinay Cement. "
5.4 In view of the foregoing and in the light of view taken in the aforesaid decisions , we have no hesitation in holding that the employees' contribution towards PF paid by the assessee before the due date of filing of return u/s 139(1) of the Act for the assessment year under consideration is admissible. Consequently, findings of the ld. CIT(A) are upheld . With these directions, ground nos. 1 to 3 in the appeal are dismissed.
6. No additional ground having been raised before us in terms of residuary ground no.4 in the appeal, accordingly, this ground is dismissed.
7. In the result, appeal is dismissed.
Order pronounced in Open Court
Sd/- Sd/-
(A.D.Jain) (A.N. Pahuja)
(Judicial Member) (Accountant Member)
Delhi (NS)
Dated : 12/09/2011
Copy of the Order forwarded to:-
1. Metzeler Automotive Profiles India (P) Ltd.,301-302,Tolstoy House,15,Tolstoy Marg,New Delhi
2. ITO W ard-6(4),Room no.418,CR Building,IP Estate,New Delhi
3. CIT (Appeals)-IX, New Delhi
4. The CIT concerned.
5. The DR, ITAT,'E' Bench, New Delhi
6. Guard File.
BY ORDER, Deputy/Asstt.Registrar ITAT, Delhi