KHADKESHWAR HATCHERIES LTD,AURANGABAD vs. DEPUTY COMMISSIONER OF INCOME-TAX, CPC,, BANGALORE

ORDER PER BENCH These appeals preferred by the above-mentioned assessees as per the captioned matter emanates from the respective orders of the NFAC for the respective assessment years as appearing hereinabove, as per the following grounds of appeal.

(1) A.Y. 2018-19 – Khadkeshwar Hatcheries Ltd., Aurangabad “1. On the basis of the facts, in the circumstances of the case and in per law, the ld. CIT(A) has erred in sustaining the action of CPC and in confirming the addition of Rs. 9,84,567/- on account of disallowance u/s 36(1)(va) for late payment of employee contribution to provident fund and ESIC. The due date referred in sec. 36(1)(va) is to be read in conjunction with sec. 43B(b) and a reading of the same would make it amply clear that the due date as mentioned in sec. 43B(b). As the dues are paid well within the due date of filing return u/s 139(1) of the Income- tax Act, 1961, hence, addition made is bad in law and liable to be deleted.

2. The appellant craves leave to add, amend, and alter any or withdraw any grounds of appeal

at or before the time of appeal hearing.” (2) for A.Y. 2019-20 – Abhilasha HR Solutions P. Ltd.

1. The CIT(A) has erred both on facts and in law in confirming the addition disallowance of Rs. 27,62,680/- of PF and ESI contribution deposited outside the statutory due date under said Act, however, paid before due date of filing of the return.

2. CIT(A) has erred in confirming the adjustment done by CPC in proceeding return u/s 143(1) dated 10-4-2020 alleging delayed payment of PF, ESI Employee contribution. Appellant prays to cancel the same as I Same is outside the scope of adjustments authorised u/s 143(1)(a); II the claim is held allowable by jurisdictional high court, so it is not an incorrect claim 143(1)(a)(ii) word ‘increase in income’ inserted w.e.f. 01- 104-2021 in clause (iv) of sec. 143(1)(a).

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3. CIT(A) has erred in confirming the addition, inappropriately considering the amendment to sec. 43B by Finance Act, 2021 is retrospective. The appellant prays to cancel the same as explanations is inserted and applicable w.e.f. 01-04-2021 (i.e. A.Y. 2021-22 only).

4. Appellant prays for just and equitable relief.” (3) for A.Y. 2017-18 Bizcoindia Facilities P. Ltd. 1. The ld. A.O/CPC erred in applying section 36(1)va) of the Act. 2. The ld. A.O/CPC erred in making addition of Rs. 22,00,426/- 3. The appellant craves leave to add, alter, amend, modify, delete or vary from above grounds of appeal

. (4) ITA No. 607/PUN/2021 for A.Y. 2018

19. Bizcoindia Facilities P. Ltd.

1. The ld. A.O/CPC erred in applying section 36(1)va) of the Act.

2. The ld. A.O/CPC erred in making addition of Rs. 16,04,460/- 3. The appellant craves leave to add, alter, amend, modify, delete or vary from above grounds of appeal

. (5) for A.Y. 2018-19 – Navjeevan Hatcheries P. Ltd.

1. On the facts and the circumstances of the case and in law, the CIT has erred in sustaining the action of CPC and in confirming the addition of Rs. 2,10,570/- on account of disallowance u/s 36(1)(va) for late payment of employees’ contribution to provident fund and ESIC. The due date referred in section 36(1)(va) is to be read in conjunction with sec. 43B)b) and a reading of the same would make it amply clear that the due date as mentioned in sec. 36(1)(va) is the due date as mentioned in sec. 43B(b). As the dues are paid well within the due date of filing of return u/s 139(1) of the Act, hence, addition made is bad in law and liable to be deleted.” (6) ITA No. 610/PUN/2021 for A.Y. 2019-20 – New Melting Centre Pvt. Ltd.

“1. Whether on the facts and in the circumstances of case and in law, CIT(A) was correct in arriving at conclusion that delayed payment of employee contribution to EPF, ESI and other welfare fund amounting to Rs. 6,56,007/- is not eligible for deduction u/s 36(1)(va) read with sec. 43B as Finance Act, 2021 has made amendment by insertion of explanation 2 to section 36(1)(va) and explanation 5 to section 43B which has retrospective effect.

2. Whether on the facts and in the circumstances of the case and in law, A.O at CPC while passing order u/s 143(1) has exceeded the powers u/s 143(1)(a)(iv) by disallowing delayed payment of Employee contribution to EPF, ESI and other welfare fund amounting to Rs. 6,56,007/- as not eligible for deduction u/s 36(1)(va) read with sec. 43B.”

(7) – A.Y. 2019-20 – Lokmanya Hospital P. Ltd. Ground No. 1 : Disallowance of Employees' contribution to Employees Provident Fund u/s 36(1)(va) of Rs.2,23,72,170 On the facts, circumstances of the case and in law CPC, Bengaluru and CIT appeals, NFAC erred in disallowing Employees Contribution to PF which was paid before due date of filing of return of income

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GroundNo.2 On the facts, circumstances of the case and in law CPC, Bengaluru and CIT appeals, NFAC erred in holding that the Amendment made by finance Act 2021 by inserting explanation 2 to section 36(va) and explanation 5 to section 43B is applicable for A.Y 19- 20 which is contrary to the decision of jurisdictional and several other tribunals. The disallowance is liable to be deleted. Ground No.3 On the facts, circumstances of the case and in law CPC, Bengaluru and CIT appeals, NFAC erred in assessing the total income at Rs.10,93,77,650 as against returned income of Rs.8,70,05,480. The appellant craves leave to add, alter, modify, delete all or any of the grounds of appeal on or before the date of hearing. for A.Y. 2019-20 – Global Advertisement Servicves The Appellant objects to the order dated September 23, 2021 passed by the Hon'ble Commissioner of Income-tax (Appeals), National Faceless Appeals Centre, Delhi ["CIT(A)"] for the aforesaid assessment year on the following amongst other grounds: 1. (a) The learned CIT(A) erred in confirming the jurisdiction exercised by Centralized Processing Centre under section 143(1) of the Income-tax Act, 1961 ('the Act') involving allowability of claim on account of delayed payment of employees' contribution to Provident Fund (under the Employees Provident Fund & Miscellaneous Provisions Act, 1952) under section 36(1)(va) of the Act. (b) The learned CIT(A) erred in not appreciating that adjustment under section 143(1) of the Act cannot be made on a debatable issue such as this and hence the impugned adjustment made is bad in law. 2.(a) Without prejudice to the above, the learned CIT(A) erred in confirming the disallowance of Rs. 18,43,664 on account of delayed payment of employees' contribution under the Employees Provident Fund & Miscellaneous Provisions Act, 1952, under section 36(1)(va) read with section 2(24) of the Act. (b) The learned CIT(A) erred in not appreciating that although the impugned payments of employee contribution to Provident Fund were made beyond the due dates under the Employees Provident Fund & Miscellaneous Provisions Act, 1952, the same were however paid within the due date of filing of tax return of the Appellant and hence allowable as a deduction.

is without prejudice to the other.

4. The appellant craves leave to add, to amend, to alter, to substitute, and to withdraw the above grounds of appeal.

Relevant section(s) Issue Grounds of appeal of the I.T. Act 1961

5 ITA 597/PUN/2021 etc. Khadkeshwar Hatcheries & Others 1) Disallowance of expenditure paid 1. If the employee 1) Sec. 43B before due date of filing income-tax contribution is not deposited return. by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down in various case laws, viz.

10. I.T.A. No. 643/PUN/2021 – Allied Resource Management Service :

1. 1. On the facts and circumstances of the case and in law, the CIT has erred in disallowing employees’ contribution to P F and ESIC u/s 36(1)(va) though the same are paid before filing of return of income.

2. The appellant craves for leave to add, alter & amend the ground of appeal before or at the time of hearing of the appeal. 11. – Bedmutha Industries Ltd.

1. The ld. CIT(A) erred in confirming the addition of Rs. 38,32,828/- made u/s 36(1)(va) by holding that:

1. The impugned deposits of employee contributions to P F and ESIC beyond the specified fund due date but before the filing of ROI, are not covered by the provisions of sec. 43B.

2. The decisions of Bombay High Court reported at 366 ITR 001, 368 ITR 749 and Hyd. Tribunal decision reported at 62 CCH 189 are not applicable.

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3. The amendments introduced vide Finance Act, 2021, by insertion of Expl. 2 to sec. 36(1)(va) and Expl. 5 to sec. 43B as clarificatory amendments having retrospective effect. Therefore, it is prayed to direct the ld. A.O to delete the impugned disallowance made u/s 36(11)(va) of Rs. 38,32,828/-. 2. The ld. CIT(A) erred in holding that the impugned disallowance u/s 36(1)(va) is a permitted adjustment u/s 143(1)(va) without appreciating the fact that the disallowance has been deleted by the jurisdictional High Court, in the cases cited in the written submissions and therefore, the disallowance is debatable and hence cannot be considered as a permitted adjustments u/s 143(1)(a). Therefore, it is prayed to hold the impugned adjustment to the returned income beyond the permitted adjustments allowed u/s 143(1)(a) and accordingly direct the ld. A.O to delete disallowance. 3. Appellant craves leave to add/amend/alter any grounds of appeal

and/or prayers before or at the time of hearing.”

2. The facts and circumstances and the issues involved in all these appeals are absolutely identical and similar. Therefore, these cases were heard together and are disposed of by this consolidated order.

3. The only issue involved in all these appeals is the disallowance of employees’ contribution to Provident Fund as well as ESIC. It is the case of the assessees that as per various decisions of Pune Tribunal it has been held that if the employees’ contribution to provident fund is paid before the due date of filing of return of income, then it is deductible as per provisions of section 43B of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) and the amendment made by the Finance Act, 2021 inserting Explanation 2 to section 43B is applicable prospectively i.e. from A.Y. 2021-22. Admittedly, in all the present cases before us, the payment of employees’ contribution to provident fund was made before the due date of filing of return of income u/s 139(1) of the Act and all these cases pertain to Assessment Years prior to A.Y. 2021-22.

7 ITA 597/PUN/2021 etc. Khadkeshwar Hatcheries & Others Bhabutmal Shah Vs. ADCIT, CPC Bangaluru, etc., order dated 28-06-2022, where the facts before the Tribunal were that the A.O made disallowance on the ground that the assessee had not deposited the employees’ share of EPF and ESI etc. within due date prescribed under respective Statutes, but paid before due date for filing of Return of Income under the provisions of section 139(1) of the Act. On appeal before the ld. CIT(A), the ld. CIT(A) confirmed the said disallowance. The Tribunal held as follows:

“6. When the matter was called on none appeared on behalf of the appellants listed at Sl. No.2 to 6 of above cause title, despite due service of notice of hearing, except in the case of Tilokchand Bhabutmal Shah (listed at Sl. No.1 of the above cause title). Therefore, we proceed to dispose of all the appeals on merits after hearing the ld. CIT-DR. 7. We heard the ld. CIT-DR and perused the material on record. The only issue raised through various grounds of appeal in this appeal is against the confirmation of disallowance of Rs.1,46,592/- made by the Assessing Officer u/s 36(1)(va) of the Act on account of late deposit of the Employees’ share of EPF and ESI etc.

8. At the outset, ld. AR appearing on behalf of the appellant Tilokchand Bhabutmal Shah listed at Sl. No.1 of above cause title filed a copy of recent decision of Co-ordinate Bench of this Tribunal in the case of Prashant Arun Sangai vs. ADIT in for the assessment year 2019-20 order dated 22.06.2022 stating that the identical issue was decided by the Tribunal (supra) in favour of the assessee. Referring to this decision of the Tribunal (supra), he submitted that principle of consistency should be applied to the facts of the present case. The ld. CIT-DR has expressed no objection on this submission of the assessee.

9. Considering the submission of the ld. AR and perusing the recent decision of the Tribunal (supra), we find that the identical issue was came up before this Tribunal in the case of Prashant Arun Sangai (supra) wherein the Tribunal decided the similar issue in favour of the assessee relying on the decision of the Hon’ble Himachal Pradesh High Court in the case of CIT vs. Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP). The relevant paragraphs of the said decision of the Tribunal (supra) are extracted herein under :- “4. We have heard the ld. DR and gone through the relevant material on record. There is no appearance from the side of the assessee despite notice. We are, therefore, proceeding to dispose of the appeal ex parte qua the assessee on merits.

5. It is seen as an admitted position from the impugned order as well as the statement of facts before the ld. first appellate authority that the assessee did deduct employees’ share of EPF and ESI and paid the same after the due date under the respective legislations but before the time stipulated for filing return u/s 139(1) of the Act for the year under consideration. In our opinion, this issue is no more res integra in view of several judgments allowing deduction u/s 36(1)(va) of employees’ share of contribution deposited after due date under the respective Acts but before the date prescribed u/s 139 of the Act. The Hon’ble Himachal Pradesh High Court in CIT vs. Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP) has held that there exists no difference between employees or employer’s

8 ITA 597/PUN/2021 etc. Khadkeshwar Hatcheries & Others contribution and both are to be allowed as deduction if deposited before the due date.

6. At this juncture, it is relevant to mention that the Finance Act, 2021 has inserted Explanation 2 below section 36(1)(va) providing that 5 the provisions of section 43B shall not apply for the purpose of determining the due date under this clause w.e.f. 01.04.2021. The effect of this amendment is that if the amount of employees’ contribution towards EPF, ESI, etc is delayed by an employer beyond the due date under the respective Acts, the disallowance will be called for notwithstanding the fact that it was deposited before the due date u/s 139 of the Act. The Memorandum explaining the provisions of the Finance Bill, 2021, provides that this amendment will take effect from 1st April, 2021 and will, accordingly apply in relation to assessment year 2021- 2022 and subsequent assessment years. Since the assessment year under consideration is 2019-20, which is anterior to the amendment carried out with effect from A.Y. 2021-22, we hold that the position of law as set out by various Hon’ble High Courts including the one in CIT vs. Nipso Polyfabriks Ltd. (supra) squarely applies to the facts and circumstances of the instant case, thereby not warranting any disallowance since the amount in question was admittedly deposited before due date u/s 139(1) of the Act. The addition is therefore, directed to be deleted.”

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Order pronounced in the open Court on this 29th September 2022.