M/S. PILVO COMMUNICATIONS PRIVATE LIMITED,BENGALURU vs. THE ASSISTANT COMMISSIONER OF INCOME TAX, CPC, BANGALORE

Before Shri George George K, JM & Ms.Padmavathy S, AM M/s.Plivo Communications Private The Assistant Commissioner Limited, HD-013, WeWork of Income-tax, CPC v. Embassy Techvillage, Block L Circle 5(1)(1) Devarabisanahalli Bangalore. Outer Ring Road, Bellandur Bangalore – 560 103. PAN : AAHCM1669D. (Appellant) (Respondent) Appellant by : Sri.Prashanth G.S., CA Respondent by : Sri.Narayana K.R., Addl.CIT-DR Date of Pronouncement : 08.03.2022 Date of Hearing : 08.03.2022 O R D E R

Per George George K, JM

“1. The order of the authorities below in so far as these are against the appellant is opposed to law, weight of evidence, natural justice, probabilities, facts and circumstances of the appellant’s case.

2. The appellant denies itself liable to be assessed on a total income of Rs.7,17,33,181 as against the returned income of Rs.6,89,47,493 under the facts and circumstances of the case. 3(a) The action of the authorities below in disallowing the employees contribution towards Provident Fund and Employee State Insurance under section 36(1)(va) of the Act of Rs.27,85,688 is bad in law.

M/s.Plivo Communications Private Limited.

(b) The authorities below erred in making the disallowance on account of employees’ contribution to PF & ESI without considering the fact that they were deposited before the due date of filing the return of income under section 139(1) of the Act under the facts of the case.

4. The learned CIT(A) failed to appreciate that the amendment to section 36(1)(va) and section 43B by the Finance Act, 2021 is applicable prospectively i.e. from 01.04.2021 and therefore the disallowance made is unwarranted on the facts of the case.

6. The appellant craves leave to add, alter, delete or substitute any of the grounds urged above.

7. In view of the above and other grounds that may be urged at the time of the hearing of the appeal. The appellant prays that the appeal may be allowed in the interest of justice and equity.”

M/s.Plivo Communications Private Limited. authority. It was stated that the assessee had paid the employees’ contribution to PF and ESI prior to the due date of filing of the return u/s 139(1) of the I.T.Act. Therefore, it was submitted that the assessee is entitled to deduction of employees’ contribution to PF and ESI having regard to the provisions of section 43B of the I.T.Act. In this context, the assessee relied on the judgment of the Hon’ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT, reported in 366 ITR 408 (Kar.). The CIT(A), however, rejected the appeal of the assessee. The CIT(A) noticed the difference between employer and employee contribution to PF and ESI and held that only employers contribution to PF and ESI is entitled to deduction u/s 43B of the I.T.Act, if the same is paid prior to due date of filing of return of income u/s 139(1) of the Act. It was further held that the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and has got retrospective operation.

5. Aggrieved, assessee has filed this appeal before the Tribunal. The learned AR submitted that an identical issue was decided in favour of the assessee by the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DICT in (order dated 21.10.2021).

M/s.Plivo Communications Private Limited. Company Vs. DCIT (supra) by following the dictum laid down by the Hon’ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra)¸ had held that the assessee would be entitled to deduction of employees’ contribution to PF and ESI provided that the payments were made prior to the due date of filing of the return of income u/s 139(1) of the I.T.Act. It was further held by the ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. The relevant finding of the ITAT in the case of M/s. Shakuntala Agarbathi Company Vs. DCIT (supra), reads as follows:

“7. We have heard rival submissions and perused the material on record. Admittedly, the assessee has remitted the employees' contribution to ESI before the due date for filing of return u/s 139(1) of the I.T.Act. The Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT reported in 366 ITR 408 (Kar.) has categorically held that the assessee would be entitled to deduction of employees' contribution to ESI provided the payment was made prior to the due date of filing of return of income u/s 139(1) of the I.T.Act. The Hon'ble jurisdictional High Court differed with the judgment of the Hon'ble Gujarat High Court in the case of CIT v. Gujarat State Road Transport Corporation reported in 366 ITR 170 (Guj.). The Hon'ble High Court was considering following substantial question of law:- "Whether in law, the Tribunal was justified in affirming the finding of Assessing Officer in denying the appellant's claim of deductions of the employees contribution to PF/ESI alleging that the payment was not made by the appellant in accordance with the provisions u/s 36[1][va] of the I.T.Act?" 7.1 In deciding the above substantial question of law, the Hon'ble High Court rendered the following findings:- "20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided in sub para (1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act within fifteen days of the closure of every month pay. It is clear that the word "contribution" used in Clause (b) of Section 43B of the IT Act means the contribution of the employer and the employee. That being so, if the contribution is made on or M/s.Plivo Communications Private Limited. before the due date for furnishing the return of income under sub-section (1) of Section 139 of the IT Act is made, the employer is entitled for deduction.

M/s.Plivo Communications Private Limited. 7.3 In view of the aforesaid reasoning and the judicial pronouncements cited supra, the amendment by Finance Act, 2021 to Sec.36[1][va] and 43B of the Act will not have application to relevant assessment year, namely A.Y. 2019- 2020. Accordingly, we direct the A.O. to grant deduction in respect of employees' contribution to ESI since the assessee has made payment before the due date of filing of the return of income u/s 139(1) of the I.T.Act, It is ordered accordingly.” 7.1 Therefore, the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment years under consideration. By following the binding decision of the Hon’ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra), the employees’ contribution paid by the assessee before the due date of filing of return of income u/s 139(1) of the I.T.Act is an allowable deduction. Accordingly, we decide this issue in favour of the assessee and the disallowance made by the Assessing Officer is deleted.