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Income Tax Appellate Tribunal, BANGALORE BENCHES “SMC-B”, BANGALORE
Before: Shri George George K
Before Shri George George K, Judicial Member Shri Sai Ram Enterprises The Deputy Commissioner of No.3878/1, Jayrama Reddy Income-tax CPC Bangalore v. Building, Near Biocon Limited Balaji Nagar, Electronic City Bangalore – 560 100. PAN : ABGFS6903F. (Appellant) (Respondent) Appellant by : Sri.Shambu Sharma, CA Respondent by : Sri.Ganesh R.Ghale, Standing Counsel Date of Pronouncement : 10.11.2021 Date of Hearing : 09.11.2021 O R D E R This appeal at the instance of the assessee is directed against CIT(A)’s order dated 30.07.2021. The relevant assessment year is 2018-2019.
The grounds raised reads as follows:
“1. That, the order of the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, in so far as is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.
2. The learned Commissioner Of Income Tax (Appeals), NFAC is erred in fact and in law in confirming the action of the Assessing Officer of adding an amount of delayed payment of employee contribution to Employees Provident Fund (EPF) amounting to Rs.14,92,208/- and employee contribution to Employees State Insurance (ESI) amounting to Rs.6,38,351/- and total amounting to Rs 21,30,559/- alleging that it was an item to be added under Section 36(1)(va) in spite of such contribution has been paid to appropriate authorities before the due date of filing the return of income and which is otherwise allowable under section 43B of Income Tax Act, 1961.
Shri Sai Ram Enterprises.
3. The learned Commissioner Of Income Tax (Appeals), NFAC is erred in fact and in law in confirming the action of the Assessing Officer in corning to conclusion that insertion of Explanation 2 to section 36(1 )(va) and Explanation 4 to section 43B in Finance Act 2021 having retrospective effect, in spite of categorical assertion in Notes on Clauses in Finance Bill, 2021 that the relevant amendment will take effect from 1st April, 2021 and will accordingly apply in relation the assessment year 2021-22 and subsequent years.
The learned Commissioner of Income Tax (Appeals), NFAC is erred in in law by not following the decisions of jurisdictional High Court in the case of ESSAE TERAOKA PRIVATE LIMITED Vs DCIT (366 ITR 408) (Karnataka He), CIT Vs Sabari Enterprises, (2008) (298 ITR 141 (Karnataka He) and other judicial precedence including the decision of Hyderabad Bench of ITAT in the case Salzgitter Hydraulics P Ltd v ITO decided in IT Appeal No. 644(HYD) of 2020 dated 15th June, 2021.
5. For these and other grounds of appeal
which may be taken at the time of hearing, it is prayed that the order of Commissioner Of Income Tax (Appeals) in so far as it relates to the above grounds, the additions made in the order of assessment of Rs 21,30,559/- is deleted.
6. Each of the above grounds is without prejudice to one another and the appellant craves leave of the Honorable Commissioner to add, delete, amend or otherwise modify one or more of the above grounds either before or at the time of hearing of this appeal.”
Brief facts of the case are as follows: For the assessment year 2018-2019, return of income was filed on 7.10.2018 declaring income of Rs.8,34,995. The assessee was served with an intimation u/s 143(1) of the I.T.Act by assessing a sum of Rs.29,65,554. The reason for the difference between the returned income and the assessed income u/s 143(1) of the I.T.Act was on account of disallowance of sum of Rs.21,30,559 being late remittance of employees’ contribution to PF and ESI under the respective Acts.
Shri Sai Ram Enterprises.
4. Aggrieved by the intimation u/s 143(1) of the I.T.Act, the assessee preferred an appeal before the first appellate 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) by placing reliance on the amendment to section 43B and 36(1)(va) of the I.T.Act by Finance Act, 2021, held that the amendment is clarifactory in nature and has got retrospective operation.
Aggrieved, assessee has filed this appeal before the Tribunal. The learned AR relied on the order of the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DICT in (order dated 21.10.2021).
The learned Standing Counsel submitted that the amendment by Finance Act, 2021 to section 36(1)(va) and 43B of the I.T.Act is clarificatory and has got retrospective operation. The learned Standing Counsel further submitted that as against 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 assessee’s SLP before the Hon’ble Apex Court is pending. Therefore, it was Shri Sai Ram Enterprises. prayed that the A.O. may be directed to follow the outcome of the judgment of the Hon’ble Supreme Court.
I have heard rival submissions and perused the material on record. On identical facts, the Bangalore Bench of the Tribunal in the case of M/s. Shakuntala Agarbathi 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?"
Shri Sai Ram Enterprises. 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 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.
The submission of Mr.Aravind, learned counsel for the revenue that if the employer fails to deduct the employees' contribution on or before the due date, contemplated under the provisions of the PF Act and the PF Scheme, that would have to be treated as income within the meaning of Section 2(24)(x) of the IT Act and in which case, the assessee is liable to pay tax on the said amount treating that as his income, deserves to be rejected.
With respect, we find it difficult to endorse the view taken by the Gujarat High Court. WE agree with the view taken by this Court in W.A.No.4077/2013.
In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs." 7.2 The further question is whether the amendment to section 36[1][va] and 43B of the Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution to ESI, if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36[1][va] and 43B of the Shri Sai Ram Enterprises. I.T.Act, alters the position of law adversely to the assessee. Therefore, such amendment cannot be held to be retrospective in nature. Even otherwise, the amendment has been mentioned to be effective from 01.04.2021 and will apply for and from assessment year 2021-2022 onwards. The following orders of the Tribunal had categorically held that the amendment to section 36[1][va] and 43B of the Actby Finance Act, 2021 is only prospective in nature and not retrospective. (i) Dhabriya Polywood Limited v. ACIT reported in (2021) 63 CCH 0030 Jaipur Trib. (ii) NCC Limited v. ACIT reported in (2021) 63 CCH 0060 Hyd Tribunal. (iii) Indian Geotechnical Services v. ACIT in (order dated 27.08.2021). (iv) M/s.Jana Urban Services for Transformation Private Limited v. DCIT in ITA No.307/Bang/2021 (order dated 11th October, 2021) 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 year 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, I decide this issue in favour of the assessee and the disallowance made by the Assessing Officer is deleted.
In the result, the appeal filed by the assessee is allowed.