ELICO LTD., HYD,HYDERABAD vs. ACIT, CIRCLE-2(2), HYD, HYDERABAD

O R D E R PER D.S. SUNDER SINGH, A.M. : This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax(Appeals)-5, Hyderabad, dated 31-05-2016.

3.1. In the assessment proceedings, the AO found that the assessee has remitted the sum of Rs.41,18,429/- employees contribution towards PF beyond the due date specified under the Employees Provident Fund Act, however, remitted the same before the due date of filing of return of income. Similarly, the assessee has remitted the contribution towards ESI amounting to Rs.3,80,215/- belatedly. However, both the contributions i.e., employees contribution of PF as well as the ESI were remitted to the concerned accounts before the due date of filing of returns of income u/s 139(1) of the act. The AO viewed that as the amounts were paid into the respective accounts belatedly beyond the due date specified under the provisions of the respective statutes, the AO made the addition to the returned income of the assessee.

3.2. Against the order of AO, the assessee preferred an appeal before the CIT(A) and the Ld.CIT(A) in his detailed order, confirmed the addition made by the AO, holding that the assessee having not remitted the contribution to the respective accounts before the due dates specified under the Act, the same are not allowable deductions u/s.43B of the Act. Hene, the assessee preferred appeal before the Tribunal, against the order of Ld.CIT(A).

3.3. During the appeal hearing, Ld.AR argued that the assessee has remitted the contributions to the respective accounts before the due date of filing the return, therefore requested to set aside the order of the lower authorities and delete the addition made by the AO.

3.4. On the other hand, the Ld.DR submitted that the EPF is in respect of employees contribution, both the PF and ESI are required to be allowed as deductions, if the same are remitted to the respective accounts before the due dates, specified in the respective act. Since the assessee failed to remit the same before the due date of the respective accounts, as per the provisions of Section 36(1)(va) of the Act, the AO made the addition and the Ld.CIT(A) rightly sustained, hence, no interference is called-for in the order of Ld.CIT(A), hence argued that the appeal of the assessee deserved to be dismissed.

3.5. We have heard both the parties through video conference and gone through the material placed on record. In the instant case, there is no dispute that the amounts-in-question with regard to EPF and ESI were remitted to the concerned accounts before the due date of filing the return of income u/sn139(1). This, the Tribunal has consistently taken a view that if the PF and ESI are remitted to the respective accounts, the same are required to be allowed as deduction. In the case of KLR Industries Ltd., Vs. DCIT (2017) [83 taxmann.com 322] (Hyd), the Tribunal held as under:

“34. The A.O. disallowed the expenditure claimed by observing that the assessee has not remitted the employees contribution to PF and ESI within the prescribed date as mentioned in section 36(1)(va). Though, the assessee did not challenge the disallowance before learned CIT(A) but he raised an additional ground before us challenging the said disallowance. It is the contention of the assessee that the employees contribution to ESI and PF though, was not paid within the due date as prescribed under section 36(1)(va) but such dues having been paid before the due date of filing of return of the income as prescribed under section 139(1), the amount is allowable as a deduction as per the provisions of section 43B. We find merit in the aforesaid submissions of the assessee. There are a number of judicial precedents on this issue wherein it is held that if the employees contribution to PF and ESI is paid within the due date of filing of return of income under section 139(1), then, the amount is allowable as a deduction in view of the provision of section 43B. In view of the afore said, we delete the addition of Rs.2,07,209”.

3.5.1. Similarly, Hon'ble Punjab & Haryana High Court in the case of Pr.CIT Vs. Rajastan Beverages Corporation Ltd., (2017) [84 taxmann.com 173] held that no disallowance can be made in respect of PF and ESI u/s.36(1)(va) of the Act, if the same are deposited on or before the due date of filing the return of income. For the sake clarity and convenience we extract relevant part of the order of the Hon’ble Rajasthan High as under:

“5. So far as the question relating to privilege fees amounting to Rs.26.00 Crores in the instant year as well as the deduction of claim of Rs.17,80,765/- on account of Provident Fund (PF) and ESI is concerned, this Court has extensively considered the aforesaid two questions in assessee's own case vide judgment and order dt.26.05.2016 referred to (supra) and has held that the privilege fees being a revenue expenditure, is required to be allowed as a revenue expenditure. This court in the aforesaid case has also allowed the claim of the assessee, in so far as payment of PF & ESI etc. is concerned, on the finding of fact that the amounts in question were deposited on or before the due date of furnishing of the return of income and taking in consideration judgment of this Court in CIT v. State Bank of Bikaner & Jaipur [2014] 363 ITR 70/43 taxmann.com 411/225 Taxman 6 (Mag.) (Raj.) and CIT v. Jaipur Vidhut Vitaran Nigam Ltd. [2014] 363 ITR 307/49 taxmann.com 540/[2015] 228 Taxman 214 (Mag.) (Raj.) and accordingly both the questions are covered by the aforesaid judgment and against the revenue”.

Against which the revenue has filed SLP before the Hon'ble Supreme Court, which was dismissed by the Hon'ble Apex Court in (2017) [85 taxmann.com 185].

Therefore, taking the consistent view and respectfully following the view taken by the Co-ordinate Bench of the ITAT in the case of KLR Industries Ltd., Vs. DCIT (supra), we hold that no disallowance could be made in respect of employees contribution of PF and ESI if the same are deposited before the due date of filing the return of income. Accordingly, we set aside the order of Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee on this ground is allowed.

5.1. Assessee is having tax exempt units as well as the taxable units. During the assessment proceedings, the AO found that the assessee is having one taxable unit i.e., the investment division and other non-taxable unit i.e., BPO or software division and most of the expenditure was debited to the taxable unit, thus viewed that the taxable income was reduced. Therefore, the AO disallowed 25% of the MDs salary and secretarial expenses, which worked out to Rs. 8,00,500/- and in respect of audit fees a sum of Rs.41,362/- aggregating to Rs.8,41,862/- on estimation basis and the same is brought to tax.

5.2. Against the said order, the assessee went on appeal before the CIT(A) and the Ld.CIT(A) confirmed the order of AO holding that any expenditure which is related to exempted income cannot be allowed against the taxable income. Against the order of Ld.CIT(A), the assessee is in appeal before us.

5.3. During the appeal hearing, the Ld.AR submitted that the assessee has shown separate Profit and Loss A/c before lower authorities, allocating the expenditure towards various units, relating to the activities carried on by the assessee. The assessee also filed the Paper Book, furnishing division-wise Profit and Loss A/c in page Nos.16 and 17 of the Paper Book as per which the assessee furnished the income and the expenditure details, head-wise and the unit wise. The Ld.AR further submitted that the assessee is maintaining the separate books of account for each unit and the income and expenditure was duly accounted unit wise, hence, argued that there is no requirement to make the estimated disallowance. Ld.AR argued that the CIT(A) erred in sustaining the addition. Hence, requested to set aside the order of the Ld.CIT(A) and allow the appeal of assessee.

5.4. On the other hand, the Ld.DR supporting the orders of lower authorities vehemently argued that the CIT(A) has rightly confirmed the addition made by the AO, hence, requested to uphold the order of the CIT(A) and dismiss the appeal of the assessee.

5.5. We have heard both the parties and gone through the material placed on record. As seen from Pgs.16 & 17 of the Paper Book, the assessee is having four units, for which the income and expenditure has been allocated unit-wise and head-wise. The assessee also stated that separate books of accounts are maintained for each unit and if separate books are maintained, there is no case for disallowance of expenditure on estimation basis. Further, Ld.AR also submitted that all the expenditure was distributed among all the units proportionately and there is no case of making estimated disallowance relating to non-taxable unit. The AO neither rejected the books of accounts nor made out case of suppression of taxable income, or inflation of expenditure in taxable units. Therefore, we hold that there is no case for making the addition on estimation basis, hence, we set aside the orders of lower authorities and delete the additions made by the AO. The appeal of assessee on this ground is allowed.

6.1. During the assessment proceedings, the AO made certain additions and after making the additions the loss was converted positive income, therefore, the assessee requested the AO for deduction u/s.10A of the Act, which was rejected by the AO in the assessment proceedings and the assessee preferred an appeal before the CIT(A).

6.2. The Ld.CIT(A) did not accept the contentions of AO that the assessee is not eligible for deduction u/s.10A of the Act if the scrutiny assessment resulted in positive income, accordingly directed the AO to allow the deduction. However, the CIT(A) found that there was business loss and un- absorbed depreciation brought forwarded from the AY.2007- 08, net effect of the same would be loss. Following the CBDT Circular No.07/2013, dt.16th July, 2013, the CIT(A) held that profit or loss from various sources i.e., from eligible and non- eligible units under the same head have to be aggregated in accordance with the provisions of Section 70 of the Act and thereafter income from one head has to be aggregated with income or loss of other head in accordance with Section 71 of the Act, giving effect to the provisions of Section 70 and 71 of the Act and if there is any income where there is brought forward loss, the same to be set-off in accordance with the provisions of Section 72 of the Act and the balance would be eligible for deduction u/s.10A of the Act, as per the provisions of Chapter-VIA. If after aggregation of income in accordance with the provisions of Section 70 and 71 of the Act, the resultant amount is loss from eligible unit, it shall be eligible for carry forward and set-off in accordance with the provisions of Section 72 of the Act. Similarly, if there is loss from an eligible unit, it shall be carried forward and may be set-off against the profits of eligible unit or in-eligible unit as the case may be in accordance with the provisions of Section 72 of the Act. Since in this case, after giving effect to the provisions of Section 70 and 71 of the Act, it resulted in loss, the Ld.CIT(A) held that no deduction is allowable u/s.10A of the Act.

6.3. Against the order of the Ld.CIT(A), assessee filed appeal before this Tribunal and argued that in the instance case, there was profit in the eligible unit and by following the order of the Hon'ble Supreme Court in the case of CIT Vs. Yokogawa India Ltd., [77 taxmann.com 41], argued that assessee is eligible for deduction u/s.10A of the Act on the gross total income of eligible undertaking under Chapter-VI of the Act and no addition to be made at the stage of computation of income under Chapter-VI of the Act, therefore argued that the assessee is entitled for deduction and hence requested to set aside the order of Ld.CIT(A) and allow the appeal of assessee.

6.4. On the other hand, the Ld.DR supported the orders of the lower authorities.

6.5. We have heard both the parties and gone through the material placed on record. In the case of CIT Vs. Yokogawa India Ltd., (supra), it was held that the profits and gains of business of eligible undertaking has to be made independently and immediately after the stage of determination of its profits and gains and it is premature to apply the provisions of Section 70, 71 and 72 of the Act at the stage of determination of profits and gains of the business, thus held that the deduction u/s.10A of the Act is to be allowed from the gross total income of eligible undertaking but not at the stage of computation of total income. For the sake of clarity and convenience, we extract para 17 of the judgement of the Hon'ble Supreme Court, which reads as under:

17. If the specific provisions of the Act provide [first proviso to Sections 10A(1); 10A (1A) and 10A (4)] that the unit that is contemplated for grant of benefit of deduction is the eligible undertaking and that is also how the contemporaneous Circular of the department (No. 794 dated 09.08.2000) understood the situation, it is only logical and natural that the stage of deduction of the profits and gains of the business of an eligible undertaking has to be made independently and, therefore, immediately after the stage of determination of its profits and gains. At that stage the aggregate of the incomes under other heads and the provisions for set off and carry forward contained in Sections 70, 72 and 74 of the Act would be premature for application. The deductions under Section 10A therefore would be prior to the commencement of the exercise to be undertaken under Chapter VI of the Act for arriving at the total income of the assessee from the gross total income. The somewhat discordant use of the expression total income of the assessee" in Section 10A has already been dealt with earlier and in the overall scenario unfolded by the provisions of Section 10A the aforesaid discord can be reconciled by understanding the expression "total income of the assessee" in Section 10A as 'total income of the undertaking'.

Respectfully following the view taken by the Hon'ble Apex Court, we direct the AO to allow the deduction at the stage of computation of gross total income but not under Chapter-VI for arriving the total income, accordingly we set aside the order of the CIT(A) and remit the matter back to the file of the AO for limited purpose of computing the deduction u/s.10A of the Act as per the order of the Hon’ble Apex court supra. Accordingly, the appeal of the assessee on this ground is allowed for statistical purposes.

Order pronounced in the open court on 18th November,2020