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1 - 7 of 7 (0.18 seconds)Commr.Of Income Tax vs M/S Alom Extructions Limited on 25 November, 2009
7. We have perused the case record and heard the rival
contentions. We observe that it is an undisputed fact that payments of
EPF and ESI were paid after due date but before due date of filing of
the return of income. We further observe that as a matter of fact
position as it stands on today that employee's as well as employer's
contribution to any fund have to be deposited together and not any
isolation. Now when section 43B stands amended section 36(I)(va)
cannot be read in isolation of this amendment. Assessee has to be
given benefit for this amendment. If employee's contribution is
deposited before due date of filing of return of income along with
employer's contribution, then such employee's contribution will not be
treated as the income of the assessee. This view has been enshrined in
the judgment of Hon'ble Apex Court in the case of CIT vs. Alom
Extrusions Ltd. (supra) which has been followed by the Co-ordinate
ITAT Amritsar Bench in the case of ACIT, Circle 2 vs. M/s Jamkash
Vehicleades Pvt. Ltd. (supra).
Section 36 in The Income Tax Act, 1961 [Entire Act]
Finance Act, 2013
Vidya Vardhani Education & Research ... vs Deputy Commissioner Of Income-Tax,, on 13 January, 2017
7. We have perused the case record and heard the rival
contentions. We observe that it is an undisputed fact that payments of
EPF and ESI were paid after due date but before due date of filing of
the return of income. We further observe that as a matter of fact
position as it stands on today that employee's as well as employer's
contribution to any fund have to be deposited together and not any
isolation. Now when section 43B stands amended section 36(I)(va)
cannot be read in isolation of this amendment. Assessee has to be
given benefit for this amendment. If employee's contribution is
deposited before due date of filing of return of income along with
employer's contribution, then such employee's contribution will not be
treated as the income of the assessee. This view has been enshrined in
the judgment of Hon'ble Apex Court in the case of CIT vs. Alom
Extrusions Ltd. (supra) which has been followed by the Co-ordinate
ITAT Amritsar Bench in the case of ACIT, Circle 2 vs. M/s Jamkash
Vehicleades Pvt. Ltd. (supra).
Income-Tax Officer vs Desh Rakshak Ausdhalaya (P). Ltd. on 30 November, 1983
In the case of CIT vs. Desh Rkshak Aushdhalaya, 218 CTR
7(UK), the Hon'ble Uttrakhand High Court held that when section 43B
was incorporated in the Income Tax Act, 1961 and contained the second
proviso. The intention of the legislature appears to be that the deduction
should be only given if the deposits are made within due dates under
the enactment under which the same were realized from employees and
required to be deposited so that employers may not earn interest etc. in
his own account and deprive the Govt. of the same. However, later the
legislature appears to have realized that whenever such amount is
deposited under the Govt. Treasury, in any case it cannot be said to be
taxable income of the employer/assessee, and has to be deducted. This
might be reason due to which the legislature omitted second proviso to
sec. 43B through Finance Act, 2003 which came into force w.e.f. 1st
ITA No.790/LKW/2017 Page 5 of 5
April, 2004. Expressly it is not provided in the Finance Act, 2003 that the
deletion is retrospective or not. The amendment which simply removes
the ambiguity, and curative in nature, impliedly has retrospective effect.
The deletion to second proviso to section 43B is retrospective in nature.
The Income Tax Act, 1961
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