TIGER STEEL ENGINEERING (INDIA) P.LTD,NAVI MUMBAI vs. DCIT 10(3), MUMBAI

The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in disallowing employee’s contribution paid on account of provident fund, ESIC and Maharashtra Labour Welfare Fund. For this assessee has raised following two grounds:-

At the outset, the learned Counsel for the assessee first of all drew our attention to the details noted by AO in his assessment order regarding payments made on account of provident fund, ESIC and Maharashtra Welfare Fund, which are as under:-

The learned Counsel for the assessee stated that both the authorities below have erred in not allowing the above claim of statutory payments and treated the same as income. The learned Counsel for the assessee stated that this issue is squarely covered in favour of assessee and against Revenue by the decision of Hon’ble Bombay High court in the case of CIT vs. Hindustan Organic Chemicals Ltd. (2014) 366 ITR 1 (Bom), wherein Hon’ble High Court has observed as under: - “8. The section referred to above viz. section 43B and the amendments thereto came up for consideration before the Hon’ble Supreme Court in the case of Commissioner of Income Tax v/s Alom Extrusions Ltd., reported in (2009) 319 ITR 306 (SC) when the Supreme Court inter alia held that the amendments to the said section brought about by the Finance Act, 2003 with effect from 1 st April 2004 were retrospective in nature and would operate from 1 st April 1988. The ITAT, relying upon the aforesaid judgment of the Supreme Court, has dismissed the Revenue’s Appeal and confirmed the order passed by the CIT (Appeals). In this view of the matter and in view of the fact that the Supreme Court has expressly held that the amendments to section 43B that were brought about by the Finance Act, 2003 are retrospective in nature, we find that the ITAT was fully justified in deleting the addition of Rs.1,82,77,138/- on account of delayed payment of Provident Fund of employees’ contribution. We therefore find that no substantial question of law arises on this count as sought to be contended by Mr Malhotra on behalf of the Revenue.

Even otherwise, we fail to understand how this deduction could have been disallowed to the Assessee. Admittedly, the Assessment Year in question is 2006-07. The second proviso to section 43B quoted above was deleted with effect from 1st April 2004 and simultaneously the first proviso was also amended bringing about a uniformity in deductions claimed towards tax, duty, cess and fee on the one hand and contribution to the employees’ provident fund, superannuation fund and other welfare funds on the other. These deductions being claimed in the return of income filed for the Assessment Year 2006- 07, the amendments to Section 43B which came into force with effect from 1st April 2004 would have clearly applied to the Assessee’s case. In this view of the matter also, we find that the ITAT was fully justified in deleting the addition of Rs. 1,82,77,138/- on account of delayed payment of provident fund of employees’ contribution.

As far as the second question is concerned, we find that the CIT (Appeals) as well as the ITAT merely followed the decisions in the case of this very Assessee in the preceding years in deleting the dis allowance of Rs. 10,00,300/- incurred towards bond registration charges and in view thereof, the ITAT came to the finding that the said expenditure was a revenue expenditure and hence allowable under section 37(i) of the Act. We are of the view that the aforesaid finding of the ITAT cannot be in any way said to be vitiated on the ground of perversity or any error apparent on the face of the record and therefore does not give rise to any substantial question of law which needs to be answered by this Court.”

Respectfully following the decision of Hon’ble Bombay High Court in the case of Hindustan Organics Chemicals Ltd. (supra) and the fact that the payments are within the due date of filing of return of income which is as on 31-10-2010, we delete the disallowance and allow the claim of the assessee.

In the Result, the appeal of assessee is allowed.