Income Tax Appellate Tribunal - Delhi
Shiva Fasteners Private Limited, ... vs Adit, Cpc, Bengaluru on 11 October, 2022
IN THE INCOME TAX APPELLATE TRIBUNAL,
DELHI BENCH: 'SMC' NEW DELHI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER
ITA No.1381/Del/2021
Assessment Year: 2018-19
M/s. Shiva Fasteners Pvt. Vs. ADIT,
Ltd., CPC,
A-6, Meerut Mall, Delhi Road, Bengaluru
Meerut
PAN :AADCS3260Q
(Appellant) (Respondent)
Appellant by Sh. Gurdeep Singh, CA
Respondent by Sh. Om Parkash, Sr. DR
Date of hearing 13.07.2022
Date of pronouncement 11.10.2022
ORDER
This is an appeal by the assessee against order dated 23.08.2021 of National Faceless Appeal Centre (NFAC), Delhi, pertaining to assessment year 2018-19.
2. In ground no. 1 to 3, the assessee has challenged the disallowance of deduction claimed on account of delayed payment of employees contribution to PF and ESI.
3. I have heard both the parties and perused the materials on record. It is evident, the dispute in the present appeal is confined to disallowance of deduction claimed of Rs.2,17,955/-
ITA No.1381/Del/2021AY: 2018-19 representing delayed payment of employees' contribution to Employees' Provident Fund (EPF) and Employees' State Insurance (ESI).
4. There is no dispute that the assessee has paid/remitted the employees' contribution to PF and ESI before the due date of filing of return of income under section 139(1) of the Act. The only reason for which the amount has been disallowed is, they were not deposited within the time specified under the relevant statute in terms of Explanation to section 36(1)(va) of the Act. I find, the aforesaid dispute is squarely covered by the decision of the Coordinate Bench in ITA No.1392/Del/2021 and Ors. (Raj Kumar and Ors., dated 28.02.2022). The relevant observations of the Coordinate Bench in case of Raj Kumar (supra) are as under:
"5. We have heard the arguments of th e parties conc erned and also the argu men ts of the representatives of the Departmen t.
6. We have gone through amendments in the Income Tax Ac t in serted by Finance Act 2021, Memoran dum, plethora of orders pa ssed by the various bench es of Tribunal and the judgmen ts of Hon'ble High C ourts of various Judicatures.
7. Co-ordinate Benc hes of the Tribunal have been take n vie w that the employee's contribu tion to PF and E S I, if paid bef ore the due d ate of f iling of the In come T ax Retu rn u/s 139(1), is an all owable ded uction and no disallo wance c an be made. To mention a f e w Orde r of the ITA T, Hyderabad in the c ase of Crescen t Road ways Pvt. Ltd., vs., DCIT vide ITA. No. 1952 / Hyd/201 8 d ated 01.0 7.2021.
2|Page ITA No.1381/Del/2021 AY: 2018-19 Orde r of the ITAT , Delhi in the case of DCIT vs. Dee Develo pment Engineers Ltd ., vide IT A.No.4959/Del. /2016 date d 08.0 4.2021.
Orde r of the ITAT, Delhi in the case of DC IT v s. Planman HR (P) Ltd ., vide ITA.No.5152/ Del ./201 7 dated 15.07.2021.
Orde r of the IT AT, Chennai in the c ase of DCIT vs. T alenpro India HR Pvt. Ltd., vide IT A.No.265 / Chennai/2019 dated 09.04.2021.
Orde r of the ITAT, Agra in the c ase of Mahadev Cold Storage vs. J ur isd iction Assessin g Off icer vide I.T .A. Nos. 20 & 21/Agra/2021 d ated 14.06.2021.
Orde r of the ITAT, Chennai in the case of DCIT v s. Re pco Home Financ e Pvt. Ltd ., reported in [2020 ] 183 IT D 782 IT AT-Chennai.
Orde r of ITAT in the case of Eagle T rans Shippi ng & Logistics ( In dia) (P.) L td. Vs AC IT in IT A No. 324 /Del /201 7 order dated 25.0 7.20 19 wherein the issue has been ruled against the assessee based on the judg men ts of Hon'ble High Cour t of Delhi in the case of C IT V s. Bhara t H otels Ltd. 410 ITR 417.
Orde r of IT AT, Delhi in the c ase of Vedv an Consul tan ts Pv t. Ltd. Vs. D C IT in IT A No. 131 2/Del/202 0 dated 26.08.2021 wherein the issue has been ruled against the assessee based on the judgmen ts of Hon'ble Madras High Cour t, Hon' ble Bombay High Court and H on'ble Keral a High Court. T he said orders are examined wh ich are as under:
MADRAS HI GH COURT : October 23, 2018 M /S. UN IFAC M ANAGE MENT SERVICES ( IN D IA) PRIVAT E LT D. VERSUS THE DEPUT Y COMM ISS IONER OF INCOME T AX, CORPORAT ION C IR CLE 3 ( 2) , CHE NNA I T he scope of Section 43B and Section 36(1 )(va) are diff erent and thus, there is no qu estion of reading bo th provisions tog ether to c onsider as to wh ether the ass essee is enti tled to deduc tion in respect of the sum bela tedl y paid to wards such con tr ibution, especially when such sum is, admittedly, a sum received by the asse ssee/employer f rom his employee. Theref ore, f or consider ing such que stio n, appl ication of Section 36(1)(v a) r. w.s. 2(24)(x) alone is the proper cou rse and an y other interpre tatio n would o nly def eat the objec t and sco pe of bo th the provisions viz., 4 3B and 36( 1)(va).
Accordingly, the writ petition fails and the same is dismisse d.
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ITA No.1381/Del/2021
AY: 2018-19
KERALA HIGH COURT : [2015 ] 378 ITR 443 :
September 8, 2015
T HE COM MISSIONER OF INCOME T AX, COCH IN V ERSUS M /S MERCHEM L IM IT ED T he distinc tion dra wn to credi t the amou nt of the employer and the employee was with a clear objec tiv e and there is no illegal ity or o ther legal inf irmity in classif ying the contributions of employees and employer in th e matte r of credi ting the same to the appropr ia te sta tu tory au tho ritie s. Considering section 36(1)(va) of the Inc ome T ax Ac t as it stands, with respect to any sum r eceived by th e ass essee f rom any of his empl oyees to which the prov isions of cl ause (x) of sub- sec tion (24) of section 2 applie s, assessee shall not be entitled to deduction of such amoun t in compu ting the income ref erred to in se ction 2 8 if such sum is not credited by th e assessee to the emplo yees' account in the relevan t f und or f und s on o r bef ore the due date as per explanation to sec tion 36(1 )(v a) of the Act.
BOMBAY HIGH COUR T: [2 014] 368 ITR 749 (Bom):
October 14, 2014 T HE COM MISS IONER OF IN COME TAX VERSU S GHAT GE PATIL T RANSPORT S LT D. T he employer assessee wou ld be enti tled to deductio n o nly if the contribution to the employee's we lf are f und sto od credi ted on or bef ore the due date and no t otherwise - f ollo wing the decision in Commissioner of Income T ax V /s. Alom Ex trusions Ltd. [SU PRE ME C OURT] - both emplo yees' and e mployer's con tr ibu tions are covered un der the amendment to S ection 43B of I.T. Act - th e T ribunal was right in hold ing that payments are subje ct to be nef its of Sec tion 43B.
8. We have examined the decisio n of the H on'ble Gujarat H igh Court in the c ase of S tate R oad T ran spor t Corpor ation (366 IT R 170) wherein the court has held the the payment were not allowable u/s 36(1)(va). It wa s held as under:
"Sec tion 4 3B, read with section 36(1)(v a) of the Income T ax Ac t, 1961 Business disallo wance - Cer tain ded uctions to be allowed on actual paymen t (employee 's con trib ution)
- whe th er where an employer has not credite d sum
4|Page ITA No.1381/Del/2021 AY: 2018-19 rece ived by it as employee's contribu tio n to e mployee's account in relevant f und on or bef ore due date as pre scribed in Expl anation to section 36(1)(va), assessee shall not be entitled to deduction of such amount though he deposits same bef ore due date presc ribed under sectio n 43B i.e. pr ior to f il ing of return und er sec tio n 139 (1). Held, ye s - assessee State T ransport Corpora tion colle cted a sum be ing Provident Fund contribu tion f rom its emplo yee s. Ho wever, it had deposited lesser sum in Providen t Fund account. A ssessing Off icer disal lowed same und er section 43B. However, Co mmissioner (Appeals) deleted disallo wance on ground that empl oyee' s contr ibutio n was depo sited bef ore filin g return. Wh ether sinc e assessee had not deposited said contribution in respec tive f und accoun t on date as prescribed in explan ati on to sec tio n 36( 1)(va), disallo wance made by Assessing Of f icer as just and pro per. "
9. Similar ly, the judgments of Hon'ble High Court of Delhi in the case of CIT Vs. Bharat Hotels Ltd. 41 0 IT R 417 held that the amounts were no t allo wa ble u/s 36(1)(va). The relevant portion is as under:
"7. T he issue here concerns th e interplay of Sectio n 2(24)(x) of the Act read with Sec tion 36(1)(va) of the Ac t alongside provisions of the Employees' Provident Funds and Miscellaneous Provisions Ac t, 1952 (especiall y Regulation 38 of the Employees' Provident F und s Scheme, 1952) and th e provisions of the E mploye es' State Insurance Act, 1948. T he AO had brou ght to tax a moun ts whic h were deducted by the empl oyer/as sessee f rom the salarie s and wages payable to its employees, as part of their contr ibu tions. It is not in dispute that the e mp loyer's right to claim deduction s und er the main part of Sec tion 43-B of the Ac t is not an issue. The question the A O had to then dec ide was whe th er the amounts de duc ted f rom the salarie s of the employees whic h had to be depo sited with in the stipulated time (in terms of notif ica tion/c ircul ar date d 19 .03.1964 whic h was modif ied o n 24.10.1 973), as f ar as the EPF c ontribution wen t and the period of three weeks as f ar as the ES I contribu tions wen t. T he AO made a tabular analysis with respec t to the contributions deducted and ac tually deposited. The cumu lative eff ect of notif ic ations und er the Employees' Provident Funds A ct, 1952 and the Employees S tate Insurance Ac t, 19 48 wa s that in respect of the EPF Scheme contributions the deductio ns were to be deposited wi th in 15 days of the succ eeding wage period with a grace period of 5 days; f or
5|Page ITA No.1381/Del/2021 AY: 2018-19 ESI contributions the deposit with the concerned sta tutory authority had to be made wi thi n three wee ks of the succ eeding wag e month/period. T he CIT in this case conf irmed the add itions - made by the A O based on the entire amounts that were disal lowed . T he IT AT ho we ver gr anted complete relief .
8. Having regard to the specif ic provisio ns of the Empl oye es' Provident Funds Ac t and ES I Ac t as we ll as the concerned notif ications whic h gran ted a grace per iod of 5 days (wh ich appears to have been late withdra wn rece ntly on 08.0 1.20 16), we are of the o pinion th at the IT AT's decision in th is c ase was not correct. T he assessee undoubtedly was en titled to cl aim the benef it and properly treat such amoun ts as having been duly d eposited, wh ic h were in f ac t deposi ted wi thin the perio d pre scribed (i.e. 15 + 5 days in the case of EPF and 21 days + an y other gr ace, period in terms of the extent notif ication). As f ar as the amoun ts constitu ting deduc tion s f rom e mployees' salarie s to wards their con tributions, which were made be yond such stipul ated period, obviously the assessee was no t enti tled to claim the d eduction f rom its returns.
9. In view of th is disc ussion , the Reven ue's appeal is partly allo wed. T he AO is directed to ex amine the contributions made wi th ref erence to the dates when the y were ac tually made and grant relief to suc h of them wh ic h qual if ied f or such rel ief in terms of the pre vail ing provisions and notif ications. We also clarif y th at the assessee would be entitl ed to deduction in te rms of Sec tion 36(1) (va) of the Ac t. "
10. We have also examined the dec ision of the Ho n'ble Allahabad High Cour t in the c ase of Sagun Found ry Pvt. Ltd. Vs CIT 145 DTR 265 wherein it was h eld th at as the payments have been made bef ore the due d ate spec if ied u/s 1 39(1) an d as such are f ully allo wable. T he Hon'ble High Cour t of All ahabad has consid ere d th e case of Gujarat State Road T ranspor t Corporation and held as under:
"17. We f ind that with respect to employee s contr ibution to Provident Fund, as to wheth er disallo wable or not with ref erence to Sec tion 36(1)(va) rea d with Sec tion 43B, a similar question came up f or consideration bef ore Gu jarat High Cour t in Commissioner of Income-T ax v. Gujarat Sta te Road Transpor t Corporation, (2014) 366 IT R 1 70. T herein Asse ssee collec ted Rs. 51,06,02,712/- f rom its employees to war ds provident f und contribu tion bu t de posited Rs.
6|Page ITA No.1381/Del/2021 AY: 2018-19 21,16,61,5 82/- with provident f und trust. T hus th ere was a short f all of Rs. 24,89,41,13 0/-. T his amoun t of shor t f all was treated by Assessing Of f icer as inco me of Asse ssee vide Section 2(24)(x) read with Section 36(1)( va) of Act 1 961. Assessing Off icer also adde d Rs. 1,93,55,58 0/being the amount of short f all towar ds employers contributory providen t f und an d disal lo we d the same under Sec tion 43B of Ac t 1961. He also disal lo wed the said amount of Rs. 1,93,55,580/- f rom expen ses cl aimed by Assessee f or the A.Y. in que stion i.e. 200506 as per provisions under Section 43B. Dissatisf ied with assessment order, Assessee pref erred appe al bef ore CIT (A) wh o vide order d ated 25.06.20 09 par tly allo wed the same and deleted d isallowance of Rs. 24,89,41,130/- (short f all in employees con tribution to prov ident f und) and R s. 1,93, 55,580/- (shor t f all in employers contributio n to providen t f und) observing th at employees contribution/employers contribution was de posited bef ore f iling Re tur n under Sec tion 139(1) of Act 1961 f or the relevant period. Revenue, in i ts turn, pref erred app eal bef ore T ribunal. Relying on jud gmen t in C ommissio ner of Inco me-T ax v. Alom Extrusions Ltd. (supra), T ribunal dismisse d appeal and conf irmed order passe d by CIT (A). T hat is ho w matter came bef ore High Cour t in appeal. Cour t considered following question, posed in para 7.01, re ads as under:" Short question wh ich is po sed f or consideration of this cour t is with respect to the disallo wance of the amou nt being th e empl oyees contribution to the PF account/E S I contr ibution wh ic h admi ttedly which the concerned assessee d id not d eposit with the PF Department/ES I Depar tmen t wi thin due da te under th e PF Act and/or the ESI Ac t."
18. Gujarat H igh Cour t ref erred to Sec tio n 2(24)(x) and f ound that any sum received by A ssessee (emplo yer) f rom his employees as con tribu tions to any provident f und or supe rannuation f und or any f und set up under Ac t, 1948, or any other f und f or welf are of such emplo yees, constitute income. However, Section 36 of Act 1961 provides f or dedu ction in computin g income ref erred to in Sec tion 28. The relevan t provision of Section 3 6 applicable to the case bef ore Gujarat High Court wa s S ectio n 36(1)(va) with wh ich we are also concerne d. It en titl es an Asse ssee f or deduction in computi ng income ref erred to in Sec tion 28 with r espect to an y sum received by Assessee (employer) f rom his employee to wh ich Sectio n 2(24)(x) appl y, if such sum is credited by Asse sse e to empl oyees accounts in th e relevant f und bef ore due d ate i.e. date
7|Page ITA No.1381/Del/2021 AY: 2018-19 pre scribed in the relevan t statute applicabl e to the conc erned f und. Cour t also noticed that Section 43 B is in re spec t to certain ded uctions and applies only on actual payment. It held that amend men t was made by deletion of Second Proviso of Section 43B only, but no c orrespond ing amendment wa s made under Section 36(1)(va). It said: " It is required to be noted that as such th ere is no amendment in Section 36(1)( va) and even the Expla natio n to Sec tion 36(1) (va) is not deleted and is s till on the statute and is required to be compl ied wi th. Merel y because wi th respec t to the employers contributio n the second proviso to Section 43B wh ich provided that even with re spec t to the employers con tr ibu tion (S ectio n 43B(b)), the Assessee was required to credit the amount in the rel evan t f und und er the PF Act or any o ther f und f or the welf are of the employees on or bef ore the due date under the relevant A ct, is deleted, it can not be said that Sec tion 36(1) (va) h as been deleted and/or amended."
19. That is h ow Gujarat H igh Cour t held that Sec ti on 43B would no t be attracted in a c ase where dispute rela tes to employees con tribution only. Sec tion 4 3B woul d be conf ined only to employer s contribu tion . It f urther said:
"T heref ore, with respect to th e employe es contribu tio n rece ived by the assessee if the assessee has not cred ited the said sum to the employees acco unt in the relevant f und or f unds on or bef ore the due date mention ed in the Expl anation to Section 36 (1)(va), the assessee sh all not be enti tle d to deductions of such amount in compu ting the income ref erred to in Sec tion 28 of the Ac t. "
20. Gujarat H igh Cour t distinguished judgme nt of Co mmissioner of Income-Tax v. Alom Ex trusion s L td. (supra) on the ground th at therein actual dispu te relates to employers contribution and whether amend me n t in S ectio n 43B by Finance Ac t, 2003 wou ld operate retro spec tive or not, Supreme Court had no occasion to consider de ductio n with ref erence to Sec tion 36(1)(va). For th e same reaso n Gujarat H igh Court dissen ted with the jud gme nts of Rajas than H igh Cour t in Commi ssioner of Inco me- T ax v. Udaipur Dugdh Utpad akSahakariSangh Ltd ., (2014) 366 IT R 163, Punjab and H aryana High Cour t in Co mmissione r of In come-Tax v. Hemla Embroidery Mil ls P. Ltd., ( 2014 ) 366 IT R 167 , Himachal Pradesh H igh Co ur t in Co mmissioner of Income-Tax v. N ipsoPl oyf abrik s Ltd., (2013) 350 IT R 327 and Karnataka H igh Cour t in Co mmissioner of Income-T ax v. S abri Ente rprise s, ( 2008 ) 298 IT R 141.
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21. Karnataka High Cou rt had an occ asion to con sider, whe th er it sh ould dissent with the v ie w taken in the earlier jud gments and f ollow the view take n by Gu jara t High Cour t in Commissioner of Income-T ax v. Gujarat Sta te Road T ransport Cor poration (supra) and this occasio n came in EssaeTeraoka P. Ltd . v. Depu ty Co mmissioner of Inco me-T ax, (2014) 366 ITR 408. Dispute relates to A.Y. 200809. Assessee f iled Return on 26.09.2008. R eturn was proce ssed under Section 143(1) and the reaf te r on scrutiny, notice under Section 143(2) was issued. Assessin g Of f icer completed assessment by order dated 24.12.2010 under Sec tion 143(3) disallo wing Rs. 12,51,737 /under S ectio n 36(1)(va) and al so disallowing R s. 1,04, 621/under Sectio n 14A re ad with Rule 8 D. In appeal, C IT (A) rev ersed f indings of Assessing Of f icer but on appe al pref erred by Reve nue, Tribunal restored Assessing Off icers ord er and that is ho w matt er c ame to Karnataka H igh Court. T he que stio n up f or con sideration was, " whe the r T ribunal was justif ied in af f irming f inding of A sse ssin g Off icer and denying Assessees claim of deduc tion of empl oyees contribution to PF/ESI alleging that th e payme nt was no t made by appell ant in accord ance with th e prov isions of Sec tion 36(1)(va) of Ac t 19 61." T he Assessee s c ounsel relied on earlier judgment of Karnataka High Co urt in Co mmissioner of Income-Tax v. Spec trum Consultants P. Ltd., (2014) 2 IT ROL 622 while coun sel f or Revenue attempte d to pursue to take a dif f erent vie w f ollowing dec ision of Gujarat High Court. T he Divisio n Benc h judgmen t delivered by Hon bleDilip B. Bhosale, (as his lordship th en wa s) held, if the contribution of employees f und is deposited within due date th e Assess ee is straigh ta way entitled f or deductio n under Sectio n 36(1)(va). H owever Se ction 43B provides f or certain deductio ns allo wable only on actual payment. It gives an exte nsion to the employer to make payment of contributio n to providen t f und or any oth er f und, till d ue date appl icab le f or furnishing of Return under Sec tion 139(1) of Act 1961, in respect of previou s year in wh ich liabil ity to pay suc h sum was inc urred, and ev idence of suc h payment is f urnished by Assessee alon g with such Return. Cour t then said:
" In shor t, this provision sta tes, notwi thstanding an ything contained in any other provision conta ined in this Act, a deductio n oth er wise allo wable in th is Act in re spec t o f an y sum pay able by the assessee as an employer by way of contribution to any f und such as providen t f und shall be
9|Page ITA No.1381/Del/2021 AY: 2018-19 allo wed if it is paid on or bef ore the due d ate as contemplated under Sec tion 139(1) of the Income-T ax Act. T his provision has no th ing to do with the consequ ence s, provided f or under the PF A ct/PF Sche me/ES I Ac t, f or not depo siting the "contribution" on or bef ore the due dates therein ."
(emphasis added)
22. It also said th at the word " con tribution" used in clause
(b) of Section 43 B of Ac t 1961 means the contr ibution of employer and employee, both , and that be ing so, if contribution is deposited on or bef ore due date f or f urnishing Retu rn of income under subsection (1) of Sec tion 139 of Ac t 1961, employer is en titl ed f or deductio n.
23. T hough in a short judgment, but Punjab and H aryan a High Court in Commission er of Inco me-T ax v. Heml a Embro idery M ill s (P.) Ltd., ( su pra) no t only f ollo wed Co mmissioner of Income-Tax v. Alom Ex trusion s Ltd. (supra) but also its o wn earl ier judgmen t in Co mmis sioner of Inco me-Tax v. Rai Agro Ind ustries Ltd ., (2011) 334 IT R 122 , to hold that Section 43B shall appl y to both contributions i. e. employer s and employee s.
24. Kerala High Court in recent judgmen t in Co mmis sioner of Income-T ax v. Merchem Ltd., ( 2015) 378 IT R 44 3, has f ollo wed the dec ision of Gujrat Hig h Court in Co mmissioner of Income-T ax v. Gujrat Sta te Road T ran sport Corpora tion (supra) and dissented with the other wise judgm en ts of Rajasthan High Court in Co mmissioner of Income-Tax v. State B ank of Bikaner and Jaipur, (2014) 363 IT R 70, Karnataka High Court in Co mmissioner of Income-Tax v. Spec tru m Consultan ts India P. Ltd. (supr a) and Bombay High Cou rt in Co mmissioner of Income-T ax v. Ghatge Patil T ranspor ts Ltd., (2014) 368 ITR 749.
25. Bef ore f ollowing a particu lar vie w when there is dive rgence in views of diff eren t High Courts, we f ind it appro priate to examine Supreme Court judgment in Co mmissioner of Income-Tax v. Alom Ex trusion s Ltd. (supra) to f ind out whe ther it can be conf ined only in re spec t to employers con tribu tion or is applicabl e to bo th contributions, wh ether by employer or employee.
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26. T he question, whether benef it under Sec tion 43B, as a re su lt of amendment of Finance Ac t, 2003, is retrospec tive or not, came to be considered in Commissioner of In come- T ax v. Alom Extr usion s Ltd. (supra). Court consider ed the intent, purpose and object in the histo rical back drop of insertion of Section 43B and its pr ogre ss by way of var ious amend men ts. Ref errin g Section 2(24)(x) it said, income is d ef ined under Sec tion 2(24) which includes prof its and gains. Further in clause ( x) of Section 2(24) any sum received by Assessee f rom employee s as contributions to any provident f und/superannuation f und or any f und set up und er Ac t 1948 , or any oth er f und f or welf are of such employees constitu te in come. T his is the re ason why ever y A ssessee/E mployer was en titled to deductio n even prior to April, 1, 1984, kee ping books o n merc antile system of acc oun ti ng, as a business expenditure, by making provision in his books of account in that regar d. A ssessee was capable of keeping mone y with him and just by mentioning in accounts, was able to cl aim deduc tion as business expenses. Section 43B was inserte d to check this prac tise and i t re sul te d in disc on tinuing mercantile system of accounting with regard to tax, con tributions etc. With induction of Section 43B an Asse ssee coul d claim deduction on actual payment basi s. By Finance Act, 1988 Parliament inser ted f ir st proviso w.e .f . 01.04. 1988 which inter al ia prov ide s th at any sum payable by Assessee by way of tax, du ty, cess or f ee, if payment is made af ter closing of accounting ye ar bu t bef ore date of filing of Return under S ection 139(1), Asse ssee woul d be entitled to deduction on actual payment basis. This proviso d id not include wi thin its ambit, contributions under labou r we lf are statu tes. B y Finance Ac t, 1988, Second Proviso thu s Second proviso was f urther amended by Finance Act, 1989 w.e .f . 01.04.1989.
27. Co urt held th at A ssessee/employer thus wou ld be enti tle d to deduction onl y if contr ib ution stands credited on or bef ore due d ate given in the Act 1952 or Act 1948. Second proviso created dif f icul ties, inasmuch as unde r Act, 1981, due date was af ter the date of f iling of re turns and thus industries made representatio ns to the M inistry of Fin ance. Cour t, looking to the history of amend men ts held, it is evident that S ec tion 43B, when e nac ted in 1984, commences with a non obstan te c lau se. T he unde rlying obje ct b ein g to disallo w deduc tions claimed merely by making a book entry based on the mercan tile syste m of accounting. A t the same time, Section 43B made it 11 | P a g e ITA No.1381/Del/2021 AY: 2018-19 mandatory f or the Departmen t to gr ant deduc ti on in computing income under Sec tion 28 in the year in wh ic h tax, duty, cess etc. is actual ly paid . Parliament too k cogniz ance of the f act tha t accounting year of a compan y did no t al ways tally wi th the due dates under Provident Fund Act, Munic ipal C orporation Ac t (Oc troi) and o the r T ax la ws. Theref ore, by way of Firs t Prov iso, an incentiv e/relaxation was sought to be given in r espect of tax, duty, cess or f ee by explicitly stating that if such tax du ty cess or f ee is paid bef ore the date of f ilin g of the re turn under Act 1961, Assessee would than be entitled to deductio n. This relaxation/incentive was restric ted on ly to tax, d uty, c ess and f ee. It did not ap ply to con tribu tio ns to labour welf are f unds. The reason appears to be that the employer should not sit on the coll ected c on tribu tio ns and depr ive workmen of the r ightf ul benef its under social welf are l egislations by d el aying payment of contributions to the welf are f und s. B ut when imple men tation pro blems were pointed out f or diff erent due dates, unif ormity was brought about in f irst proviso by Finan ce A ct, 2003. Henc e, amendment made by Finance Ac t 2003 in Section 43B is retrospective, being c urative in nature and appl y f rom 01.04 .1988. In th e resul t wh en contribution had been paid, prior to f iling of return under Sec tion 139(1), Asse ssee/employer would be entitl ed f or deduction and sinc e deletion of Second Proviso and ame nd men t of First Proviso is curative and apply retrospectiv el y w.e.f . 01.04.1988.
28. Fro m the af oresaid judg ment, we f ind tha t irrespective of the f act tha t deduction in respect of su m payable by employer con tribution was involved, but C our t did not re strict observations, f indings and declara tion of l aw to that con tex t bu t looking to th e objective and purpo se of insertion of Sec tion 43B applied i t to both the contributions. It al so observed clearly th at Section 4 3B is with a non-obstante clause and ther ef ore over ride even if , anything other wi se is con tained in Sec tion 36 or an y provision of Ac t 1 961.
29. T heref ore, we are cl early of the view that law laid do wn by High Courts of Karnataka, Rajasth an, Punjab and Haryana, Delhi, Bombay and H imachal Pr ade sh have rightly applied Section 43 B in respect to both con tributions i.e. employer and empl oyee. Other wise vie w tak en by Gujarat H igh Court and f ollowed by Kerala High Court, with great respect, we f ind exped ient to dissent there with."
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11. T hus, we f ind that th e Judgment of Hon'ble Allahabad High Court has duly ref lected on the jud gmen ts of various Hon' ble Courts and taken a con sidered de cision on this issue.
12. With regard to the precedentiary v alue in d ecid ing the issue bef ore us, we have gone through the f ollo wing judgmen ts:
T he Hon'ble Allahabad High Cour t in K. N. Agar wal v. C IT 189 IT R 769 held that, " Indeed, the orders of the T ribunal and th e High Court are binding upon the A ssessing of f icer and since he acts in a quasi judicial capacity, the d iscipline of such f unc tioning demands tha t h e should f ollow the decision of the T ribunal or th e High Court, as the case may be. He c anno t ignore mer el y on the ground that the T ribunal 's or der is the subject matter of revision in the High Court or the H igh Cour t' s d ec ision is un der appeal bef ore th e Supreme Cour t. Permitting him to take such a vie w would in troduce judicial indiscipline, wh ich is no t called f or even in suc h case s. It would lead to a chaotic situatio n" .
13. T he Hon'ble A pex Cou rt in Bar adakanta Mishra v s. Bhimsen Dixit A IR 1972 SC 2466 held th at it wo uld be anomalous to suggest that a T ribunal ove r whic h a High Cour t has superintend ence can ignore the la w decl ared by it and if a Tribunal c an do so, all the subordin ate courts can equally do so, f or there is no specif ic provision as in re spec t of Supreme Cour t, making the la w decl ared by the High Cour t binding on subord inate Cour ts.
14. At this juncture, we woul d like to men tion that there is no f ixed rule or direction as to what shou ld be apposi te course to resort in case of conflicting de cision s of Hon'ble Jurisdic tion al High Court and non- jurisdictional H igh Cour t.
15. Article 141 of th e Consti tu tion lays do wn tha t the "la w declared" by the Supreme C ourt is binding upon all the courts wi th the territory of Ind ia. T he "la w declar ed"
has to be c onstrued as a princ iple of law that emanates f rom a ju dgment, or an interpretation of a law or judgmen t by the Supreme Cour t, u pon whic h, the case is d ec ided. Henc e, it f lows f rom the above that the "l a w de clared" is the principle culled out on the read ing of a judgment as a 13 | P a g e ITA No.1381/Del/2021 AY: 2018-19 whole in the light of the questions raised, u pon wh ich the case is decid ed. Ambic a Q uarry Wor ks vs. State of Gu jarat (1987) 1 SCC 2 13; and C IT vs. S un Engg . Wor ks (P) L td. (1992) 4 S CC 363.
16. T he Hon'ble Supreme C ourt in C IT vs. Ralso n Industries Ltd . (288 ITR 322) observed tha t wh en an order is passed by a higher authority, the lo wer au tho rity is bound thereby keeping in view th e principles of judicial disc ipline.
17. T he High Cour ts ar e Cour t of record under Ar ticle 215 of the Con stitution. By virtue of the provisions of Artic le 227, the High Cour ts have po wer of supe rin tendence over all Cour ts and tribunals in the ir re spec tive jurisd ic tion. T hus, it is implied th at all Courts and T ribunal s in the respective S tate will be bound by the dec isions of the H igh Court.
18. In order to have f ixity, f inality and conclusiveness of the jud icial proceedings, the 'preced en ts' h ave a re markable role in the f ormation of jud icial o pin ions, judicial orders and dispensation of justice . T he concept of "Star e decisis et non qu ietamover e", whic h translates as 'to stand by things decid ed an d n ot dis turb settl ed points'. T he doctrine of stare decisis, or binding precedent, is the princ iple by wh ich judges are bound by decisio ns of supe rior courts. T he principal abe t in pr ed ictability, unif ormity and judicial f airness.
19. We have also given considerable though t to the word s of the Hon'ble Judges of the Supreme Cour t in the case of Distributors (B aroda) Pvt. Ltd v s. Un ion of India 1985 A IR 1 585 wherein it was held that, "To perpetuate an error is no heroism. T o rectif y it is the compulsion of jud icial conscience. In this we derive comf or t and strength f rom the wise and inspiring wor ds of Justice Bronson in Pierce v. Delame ter A.M.Y. at page 18: "a Judge ought to be wise enough to kno w that he is f allibl e theref ore ever yday to l earn: great and hone st enough to discar d all mere pride of opinion and f ollo w tru th wherever it may lead: and courageous e nough to ac knowledge his errors" .
20. T hus, we see a f ine balance bet we en the f ix ity and the f lexibility.
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21. In this background, the various decisions of the Hon'ble Jurisdic ti on al H igh Courts have been perused.
22. In the case of C IT Vs. Bharat Ho tels L td. 410 IT R 417, the question of la w a t serial no. 2 f ramed by the Hon'ble High Court reads as unde r: (order dated 06.09.2018) "2. Whether the payment of provident f und and empl oyees state insurance dues deposited by th e asse ssee wi thin the gr ace period would qu alif y f or deduc tion under Sectio n 43B of the Income Tax Act, 1961?"
23. T he said question was deal t at para 7 & 8 of the order, it has been held that the assesse e undou bte dl y was enti tle d to claim the benef it an d prope rly tre at suc h amounts as having been duly deposited, wh ich were inf act depo sited with in the period prescribed (i.e. 15+5 days in the case of EPF and 21 d ays + an y o ther grace period in terms of extent notif ication).
24. T hus, the Hon'ble Cour t h as held th at the emplo yers contribution is an allowable deduc tion, if paid bef ore the due date answe ring the question of la w f rame d. T he Hon'ble Cour t went f urther and held tha t as f ar as the amounts constituting deductions f rom emplo yee's salaries to war ds their contribu tions, which were made beyond such stipulated period, obviously the asse ssee was no t enti tle d to c laim the d eduction f rom its returns.
25. We h ave perused the order of the Ho n'ble Jurisdic tion al High Court in th e case of CIT Vs. A IM IL Ltd. 321 IT R 508 vide order dated 23.12.2009 held that if the employees' contribution is not deposited by the d ue da te pre scribed under the rel evant Acts and is deposite d late, the employer not only pays interest on delayed paymen t but can incur pen alties also, f or which specif ic pro visions are made in the Providen t Fund Act as we ll as the ESI A ct. T herefore, the Act permits the employer to make the depo sit with some delays, subject to the af oresaid consequences. Insof ar as the Incom e-tax Ac t is conce rned, the assessee c an get the benef it if the ac tual paym ent is made bef ore the return is f iled, as per the principl e laid do wn by th e Hon'ble Supreme Court in the case of V inay Ce ment Ltd.
26. T he brief f acts of such case are as under:
15 | P a g e ITA No.1381/Del/2021 AY: 2018-19 "2. The case relates to the assessment year 2002-03. T he re spondent assessee had f iled its return on 30-10-200 2 decl aring income at Rs. 7,95,430. During the asse ssmen t proceedings, the Assessing Of f icer ( AO) f ound that the assessee had deposited employers' contribu tion as well as employees' contr ibution to war ds providen t f und and ES I af ter the due date, as prescribed under the re levant Act/Rules. A ccordingly, he made add ition of Rs. 4 2,58,57 4 be ing employees' contribution u nder section 36(1)(va) of the Ac t and Rs. 30,68,583 being emplo yers' contri butio n under sec tion 4 3B of the Act. Felt aggrieved by this assessment order, the assessee pref erred appeal bef ore the CIT (A) who d ecid ed th e same vide orders dated 15-7-
2005. T hough the C IT(A) accepted the contention of the assessee that if the payment is made bef ore the due date of f iling of return, no disallo wan ce could be made in vie w of th e provisions of section 4 3B, as amended vide Finance Act, 2003, he still conf irmed th e add itio n made by the Asse ssing Of f icer on the ground th at no docu men tary proof was given to support th at payment was in f act made by the assessee. The assessee f iled an application unde r sec tion 154 of th e Act bef ore the CIT(A) for rectif ic ati on of the mistake. Af ter having satisf ied tha t paymen t had, in f act, been made, the C IT (A ) rec tif ied the mistake and dele ted the addition by holding that the assessee had made the payment bef ore the du e date of f iling of the re turn, wh ich was a f act apparen t f rom the record."
T he decision of IT AT:
27. T he Co-ordinate Bench of IT AT relie d on th e judgment of Hon'ble Supreme Cour t in the case of C IT Vs. V inay Ce ments Ltd. 213 CT R 268 to support its decision to the eff ect tha t if the employers' as wel l as e mployees' contribution to wards provid en t fund and ES I is paid bef ore the due date of f iling of return, no d isallo wance can be made by the Assessing Of f icer.
28. T he relevant par t of the order of the IT AT relying o n the CIT V s. Vinay Cemen ts Ltd. (supra) is as under:
"11. We have caref ully considered the rival submissions in the light of material placed bef ore us. In the asse ssment order l d. A ssessing Off icer has categoric ally sta te d that what the amount due was f or which month in respect of EPF, Famil y Pension, PF inspec tion ch arge s and ES I depo sits and wh at were the du e d ates f or these deposi ts and on wh ich date th ese deposits were made. T he d ates of 16 | P a g e ITA No.1381/Del/2021 AY: 2018-19 depo sits are mentioned between 23rd May, 2001 to 23rd April, 2002. T he latest paymen t is made on 23rd A pril, 2002 and assessee being limited compan y had f iled its re turn on 20th October, 200 2 which is a date no t b eyond the due d ate of f iling of the return. T hus, it is cle ar be yond d ou bt th at all the payments which have been disallo wed were made much ear lier to the due d ate of f iling of the return. The disallo wance is no t made by the Asse ssing Of f icer on th e gr ound that there is no proof of making such payment bu t disallowance is made only on the ground that these payments have been made beyond the due d ates of making th ese payments under the re spec tive statu te. Thu s, it was not an issue that the payments were n ot made by the assesse e on th e dates whic h have been sta ted to be the dates of deposits in the assessment order. If such is a f ac tu al aspe ct then according to l atest posi tion of law cl arif ied by Hon'ble Su preme Cour t in the case of CIT v. V inay Ce ment Ltd. that no d isallowance could be made if the payments are made bef ore the du e date of f iling the return of income. This issue c ame bef ore Hon'ble Supre me Cour t in the case of C IT v. Vinay Cemen t Ltd. whic h was a special leave petition f iled by the departme n t against the High Court Order of 26th June, 2006 in IT A N o. 2 /05 and IT A No. 56/0 3 and IT A No. 8 0/03 of the High Court of Gu wah ati, A ssa m and it is order d ated 7 th M arch, 2007. A copy of the said order is pl aced on record. T he observ ations of their Lordships on the issue are as under :--
'In the present case we are concerned wi th the l aw as it stoo d prior to the amend ment of sec tion 43B. In the circ umstan ces the assessee was entitl ed to c laim the benef it in sec tion 43B f or th at period particularly in vie w of the f act tha t he has c on tribu ted to prov ide nt f und bef ore f iling of the retur n.
T he special l eave petition is d ismissed."
29. T hus, we f ind th at th e Co-ord inate bench of IT AT and the Hon'ble Jurisdictional high Court of Delhi h ave relied on the judgmen t of Vinay Cements Ltd . ( supra).
30. Fur ther , the Hon' ble Jur isdic tion al H igh Cou rt of Delhi in the c ase of PC IT Vs. Pro Interac tive Se rvices ( India) Pvt. Ltd. in IT A 983/2018 date d 10 .09.2018 wh ile dismissing the a ppeal of the Revenue hel d that "the leg islative in ten t was/is to ensure that the amount p aid is 17 | P a g e ITA No.1381/Del/2021 AY: 2018-19 allo wed as an expenditure onl y when payment is actually made . We do not thin k tha t the leg islativ e intent and obje ctive is to tr eat belated payme nt of Employee's Provident Fund (EPD) and E mployee's State Insurance Scheme (ES I) as deemed inc ome of the employer under Sec tion 2(24) (x) of the Ac t."
31. Fur ther , this issue has been examined in the F inan ce Act, 20 21 which are as under:
"Sec tion 2 (24) (x) of the Income T ax Ac t, 1961 read s: "an y sum received by the assessee f rom his employee s as contributions to any provident f und or superann uatio n f und or any f und set up und er the prov isions of the Empl oye es' S tate In su rance Act, 1948 (34 of 1948), or an y other f und f or the welf are of su ch employees."
FINANCE ACT, 2021 [13 OF 202 1] An Act to give eff ec t to the f inancial pro posals o f the Central Governmen t f or the f inancial year 2021-2022.BE it enac ted by Parl iament in the S eventy-second Year of the Republic of Ind ia as f ollo ws:--
CHAPTER I PRELIMINAR Y Short titl e a nd commencemen t.
1. (1) This Act may be called the Finance Act, 2021.
(2) Sav e as otherwise provided in this Act,--
(a) section s 2 to 88 s hall come into f orce on the 1st day of April, 2021;
(b) section s 108 to 123 shal l come into f orce on such da te as the Central Government may, by notif ic ation in the Off icial Gazette, appo int.
Amendment of secti on 36.
9. In sec tion 36 of the Income-tax Act, in su b-section (1 ), in cl ause (va), the E xplan ation shall be numbered as Explana tion 1 thereof and af ter Explan ation 1 as so numbered, the f ollo wing Explan ation shall be inserted, namely:--
18 | P a g e ITA No.1381/Del/2021 AY: 2018-19 'Explanation 2.--For the removal of doubts, i t is here by cl arif ied that the provisions of section 43B shall no t appl y and shall be deemed never to have be en applied f or the purpo ses of determining the "due date" under this clause;'.
Amendment of secti on 43B.
11. In section 43B of the Inc ome-tax Act, af ter E xplanation4, th e f ollo wing Expl anation sha ll be inserte d, namely: --
"Explan ation5.--For the removal of doubts, it is here by cl arif ied that the provisions of th is section shall no t appl y and sh all be deemed never to have been applied to a sum rece ived by the assessee f rom any of his emplo yees to whic h the provisions of sub- clause (x) of clause (24) of sec tion 2 applies.".
32. We have also perused the Memorandu m Explaining the Provision s in the F inance B ill, 2021. Under the head "Provision rel atin g to Direct T axes" with to ration alizatio n of various provisions, the issue of clau se (24 ) of Section 2 sub-clause (x), Section 36(1) cl ause (va), Sec tion 43B with regard to provisions of sub-Section (1) of Section 139 have been de alt at length. T he g ist is as under:
"Rationalizat ion of vari ous Pr ovisions Payment by employer of employee contribu tion to a f und on o r bef ore due date Clause (24) of section 2 of the Act provides an inc lusive def inition of the income. Sub-clause (x ) to the said clause provide tha t income to include any sum rece ived by the assessee f rom his employees as con tribution to an y provident f und or superannuation f und or any f und se t u p under the provisions of ESI Ac t or any o th er f und for the welf are of such employees.
Sec tion 36 of the Ac t pertains to the other deduction s. Su b-sec tion (1) of the said sec tio n provid es f or various deductio ns allowed wh ile computing the income und er the head Prof its and gains of business or prof ession'.
Clause (va) of the said sub-sec tion prov ide s f or dedu ctio n of any sum received by the assessee f rom any of his employees to wh ich the pr ovisions of sub-clause (x) of cl ause (24) of section 2 appl y, if such sum is cred ited by the asse ssee to the employee's account in the relevan t f und or f unds on or bef ore the due date.
19 | P a g e ITA No.1381/Del/2021 AY: 2018-19 Expl anation to the said clause provides th at, f or the purpo ses of this clause, "due date to mean the date by whic h the assessee is required as an emplo yer to cr edit an employee's con tribution to the employee's accou nt in the relevant f und under any Ac t, rule, orde r or no tif ic atio n issued there-under or under any standing order, award, contract of service or other wise.
Sec tion 43B specif ies the list of deduc tio ns th at are admissible under th e Act only upon the ir ac tual payment. Empl oye r's contri bution is covered in clause ( b) of sectio n 43B. According to it, if any sum to ward s e mployer's contribution to any provident f und or superann uation f und or gratuity f und or any other f und f or the we lf are of the employees is actually paid by the asse ssee on or bef ore the due d ate f or furnishing the return of the income unde r sub-section (1) of sec tion 139, assessee would be entitl ed to deduction under sec tion 43B and su ch dedu ction would be admissible f or the accoun ting year. T his provision does not cover employee contribution ref erred to in clau se (va) of su b-section (1) of section 36 of th e Ac t.
T hough section 43B of the Ac t covers only emplo yer's contribution and does not cover emplo yee con tribu tion, some courts have appl ied the provision of sec tion 4 3B on employee contribution as wel l. T here is a d istinction be tween employer contribu tion and emplo yee's contribution to wards welf are f und. It may be no ted that employee's contr ibution to wards welf are f unds is a mechanism to ensure the complian ce by the employers of the labour welf are la ws. Hence, it nee ds to be s tre ssed that the employer' s con tribution toward s we lf are f unds such as ES I and PF need s to be clearly dis tinguished f rom the employee's contribu tion toward s we lf are f unds. Empl oye e's contr ibution is employee o wn money and the employer d eposits this contr ibution o n behalf of the employee in f id uciary capac ity. By late d epo sit of employee con tribution , the employers ge t un justly enriched by keeping the money belonging to the employee s. Clause (va) of sub- sec tion (1) of Section 36 of the Ac t was in serted to the Act vide Finance Act 19 87 as a me asures of penal izing empl oyers who mis-u tilize emplo yee's contributions.
Accordingly, in or der to provide certain ty, it is propo sed to
-
(i) amend cl ause (va) of su b-section (1) of sec tio n 36 of the Act by inser ting another expl anation to the said cl ause to 20 | P a g e ITA No.1381/Del/2021 AY: 2018-19 cl arif y that the provision of sec tion 43 B does not appl y and de emed to n ever have been ap plied f or the pu rpo ses of determinin g the ―due date under this clause; and
(ii) amend sec tion 43B of the Ac t by in ser ting Explanatio n 5 to the said section to clarif y that the provision s of the said section do not appl y and d eemed to never have been appl ied to a sum received by the assessee f rom any of his employees to which provisions of sub-cl ause (x) of clause (24) of sec tion 2 applies.
T hese amend ments will take eff ect f rom 1 st April, 2021 and will acc ord ingly apply to th e assessme nt year 2021- 22 and subsequent assessment years."
[Clau se s 8 and 9]
33. T hus, the matter h as been f inal ly decided and the controversy has been put to rest.
34. Having gone through the Orders of the Co-ord inate Bench of Tribu nal allo wing the delayed paymen t pertaining to employees c ontribu tion, Orders of th e Co- ordinate Bench of T ribunal d isallo wing th e delayed payment pertaining to employees contribution, Jud gmen ts of variou s Hon'ble Courts disallo wing the de layed payment, Judgments of var ious Hon'ble Cour ts disallo wing the del ayed paymen t, provisio ns of Sectio n 2(24)(x), Section 36(1)(va), Section 43B, S ection 139(1) of the Income Tax Act, 1961, provisions of Finance Act 2021, Memo randum explaining the pr ovision s in Finance Bill, 2021 and the specif ic amend ments which will take ef fect f rom 01.04.2021, we hereby hol d that no disallo wance is called f or bel ated paymen t of the emplo yee's con tributio n to the re spective ESI and EPF f und in the case of assessee who have deposited the same bef ore the due d ate of f iling of Income Tax Re turn.
35. In the resu lt, the appeals of the assessee are allo wed and the appeals of the Revenue are d ism isse d."
5. Facts being identical, respectfully following the decision of the Coordinate Bench, as referred to above, I delete disallowance of Rs.2,17,955/-. Accordingly, ground is allowed.
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3. In ground no. 4, the assessee has challenged the addition of Rs.2,10,812/- on account of profit on sale of fixed assets.
4. I have heard both the parties and perused the materials on record. While processing the return of income filed by the assessee, the Centralized Processing Centre made an addition of Rs.2,10,812/- representing profit on sale of fixed assets. In course of the proceeding before the first appellate authority, the assessee submitted that it had received an amount of Rs.3.90 lakhs from sale of car, which was credited to the profit and loss account after deducting the written down value, as per the Companies Act. It was submitted, in terms with the provision of Income Tax Act, the total sale consideration received was deducted from the written down value of block of assets and duly shown in the depreciation chart. However, the aforesaid submission of the assessee was not accepted by the first appellate authority on the ground that the matter falls within the purview of section 154 of the Act, hence, the assessee should have approached to the AO/CPC by filing an application under section 154 of the Act. It is submitted before us, assessee's application 22 | P a g e ITA No.1381/Del/2021 AY: 2018-19 under section 154 of the Act has now been disposed of by the AO/CPC by rejecting the claim.
5. Considering the aforesaid factual position, I am inclined to restore this issue to the file of learned Commissioner (Appeals) for deciding on merits, as, he has not done so earlier while disposing of assessee's appeal. Ground raised is allowed for statistical purposes.
6. In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open court on 11th October, 2022 Sd/-
(SAKTIJIT DEY) JUDICIAL MEMBER Dated: 11th October, 2022.
RK/-
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR Asst. Registrar, ITAT, New Delhi 23 | P a g e