ACIT, CIRCLE- 4(2), NEW DELHI vs. BHADRA INTERNATIONAL INDIA PVT. LTD., NEW DELHI

“1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is legally justified in law in holding that the employees’ contribution to the Employees Provident Fund (EPF) and the Employees State Insurance Scheme (ESI) which is deemed as the employer’s income u/s 2(24)(x) of the Act and which is subject to deduction u/s 36(l)(va) of the Act is also governed by Section 43B of the Act.

The appellant craves leave for reserving the right to amend, modify, alter, add or forgo any grounds(s) of appeal at any time before or during the hearing of this appeal.”

The fact for Assessment Year 2013-14 shows that the assessee filed its return of income on 29.09.2013 at loss of Rs. 57,83,50,735/-. The assessment u/s 143(3) of the Act was made on 30.12.2015 determining loss of the assessee of Rs. 57,98,00,740/-. Thereafter the ld AO noted that sum of Rs. 2,38,71,196/- on account of delay in deposit of employees, provident fund is not allowable u/s 43B of the Act and therefore, there is under assessment of income. The ld AO proposed to make an adjustment u/s 154 of the Act. The assessee did not remain present before the ld AO and therefore, the ld AO passed order u/s 154 read with Section 143(3) of the Act dated 06.02.2017 wherein, he made an disallowance of Rs. 2,38,71,196/- being an amount of employees contribution towards provident fund and ESIC scheme deposited after the due date of payment in those respective acts on the basis of detailed contained in tax audit report. The order u/s 154 determined the total loss of the assessee at Rs. 55,59,74,600/- after above disallowances.

The assessee preferred an appeal before the ld CIT(A) who deleted the disallowance holding that the issue is covered by the decision of the Hon‟ble Supreme Court in case of CIT Vs. Vinay Cement Ltd 313 ITR 01 and Hon'ble Delhi High Court in case of CIT Vs. AIMIL Ltd 321 ITR 508. Thus, the appeal of the assessee was allowed. 5. The ld AO is aggrieved with the above order. 6. The ld DR relied upon the order of the ld AO and submitted that that is the correct position of law and therefore, the ld AO is correct in rectifying of this order u/s 154 of the Act. 7. Despite notice, none appeared on behalf of the assessee and therefore, the issue is decided according to the information available on record. 8. We have carefully considered the contention of the ld DR. The only issue involved in this appeal is the disallowance made by the ld AO on the delayed payment of employees‟ contribution beyond the due dates prescribed under the respective P F and ESIC laws but before the due date of filing of return of income by the assessee. We find that in view of the decision of the Hon'ble Delhi High Court in case of Pr. CIT Vs. Pro Interactive service India Pvt. Ltd ITA 983/2018 dated 10.09.2018 has held that the legislative intent was to ensure that the amount paid is allowed as expenditure only when payment is actually made. In fact, assessee has made the above payment before the due date of filing of Income tax Return.

Having regard to the specific provisions of the Employees' Provident Funds Act and ESI Act as well as the concerned notifications which granted a grace period of 5 days (which appears to have been late withdrawn recently on 08.01.2016), we are of the opinion that the ITAT's decision in this case was not correct. The assessee undoubtedly was entitled to claim the benefit and properly treat such amounts as having been duly deposited, which were in fact deposited within the period prescribed (i.e. 15 + 5 days in the case of EPF and 21 days + any other grace period in terms of the extent notification). As far as the amounts constituting deductions from employees' salaries towards their contributions, which were made beyond such stipulated period, obviously the assessee was not entitled to claim the deduction from its returns.

In view of this discussion, the Revenue's appeal is partly allowed. The AO is directed to examine the contributions made with reference to the dates when they were actually made and grant relief to such of them which qualified for such relief in terms of the prevailing provisions and notifications. We also clarify that the assessee would be entitled to deduction in terms of Section 36(1)(va) of the Act.”

However Honourable Delhi high court in case of PR. COMMISSIONER OF INCOME TAX-7 VERSUS PRO INTERACTIVE SERVICE (INDIA) PVT. LTD. 2018 (9) TMI 2009 - DELHI HIGH COURT dated Dated.- September 10, 2018 in ITA 983/2018 has held as under :- “In view of the judgment of the Division Bench of Delhi High Court in Commissioner of Income-Tax versus Aimil Limited, (2010) 321 ITR 508 (Del) the issue is covered against the Revenue and, therefore, no substantial question of law arises for consideration in this appeal. The legislative intent was/is to ensure that the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective Page | 4

We are also conscious of the amendment made to the provisions of the law introducing explanation 1 by The Finance Act, 2021 with effect from 1 April 2021 wherein it has been specifically clarified that that the „due date‟ means the date by which the assessee is required as an employer to credit employees contribution to the employees‟ account in the relevant fund under the respective act, rule or order of notification issued under the respective law. The notes on clauses to The Finance Bill 2021 also notes that:- “Clause 8 of the Bill seeks to amend section 36 of the Income-tax Act, relating to other deductions. Sub-section (1) of the said section provides for allowing of deductions provided for in the clauses thereof for computing the income referred to in section 28 of the said Act. Clause (va) of the said sub-section provides for allowance of deduction for any sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. Explanation to the said clause provides that for the purposes of this clause, "due date" means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued there under or under any standing order, award, contract of service or otherwise. It is proposed to insert Explanation 2 to clause (va) of sub- section (1) of the said section so as to clarify that the Page | 5

Therefore it is apparent that above explanation is inserted with effect from 1 April 2021 will apply from assessment year 21 – 22 only and thereafter from assessment year 21 – 22, the provident fund and ESIC and other funds collected from the employees but are deposited beyond the due date prescribed Under the respective laws Under which the contribution is collected, same are disallowable. However, for impugned year before us i.e. assessment year 2013 – 14, this insertion does not help the case of the revenue.

Therefore, we do not find any infirmity in the order of the ld CIT (A). Accordingly, we confirm the order of the ld CIT(A) and dismissed the appeal of the ld AO. 14. The similar is the case in substance for Assessment Year 2014-15 wherein, the disallowance has been made by the ld AO in the assessment order passed u/s 143(3) of the Act itself. However, as the subject matter remains the same that whether the employees contribution to the provident fund and ESIC is disallowable if these are paid after the due date prescribed in the respective laws but before the due date of filing of return of income. As we have already pointed out that the issue is squarely covered in favour of the assessee by the later decision of the honourable Delhi High Court, we do not find any merit in the appeal of the learned assessing officer. Further For the reason given by us while dismissing the appeal of the ld AO for Assessment Year 2013-14, we also dismiss this ground of appeal