DCIT CORPORATE CIRCLE 4(1), CHENNAI vs. MALABAR HOTELS PVT. LTD., CHENNAI

आदेश / O R D E R

PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER:-

2 -: ‘’2. The CIT(A) erred in deleting the addition of ₹46,20,690/- made u/s 36(i)(va) r.w.s 2(24)(x) of the Income tax Act, 1961. 2.1 As per the provisions of section 36(1)(va) deduction in respect of any sum received by the tax payer as contribution from his employees towards any welfare fund of such employees is allowed only if such sum is credited by the tax payer to the employees' account in the relevant fund on or before the due date. Due date means the date by which the assessee is required as an employer to credit such contribution to the employee's account in the relevant fund under the provisions of any law or term of contract of service or otherwise. 2.2 It is pertinent to mention that the provisions of section 43B of the Income tax Act 1961 is not applicable in the case of employees' contribution towards PF/ESI. 2.3 It is submitted that the CBDT in Circular No. 22/2015 dated 17.12.2015 has clarified that deduction relating to employees' contribution to welfare funds are governed by section 36(1)(va) of the Incometax Act. This circular was issued by the CBDT in the light of the judicial decision in the case of CIT vs Alom Extrusions Ltd (2009) 185 TAXMAN 416 (SC). 2.4 The decision of the jurisdictional High Court in the case of M/s. Industrial Security & Intelligence India Pvt. Ltd, has not been accepted and a Review Petition has been filed before the Hon’ble High Court of Madras’’.

Ld. Counsel for the Revenue submitted that Revenue had not 3. accepted the judgment of Hon’ble Jurisdictional High Court in the case of CIT vs. Industrial Security & Intelligence India Pvt Ltd. (TCS No.585 & 586 of 2015, dated 24.07.2015). According to him, contribution by the employees, towards welfare funds, remitted after due date prescribed in the respective enactments had to be disallowed u/s.36(i)

(va) of the Act. Reliance was also placed on CBDT Circular No.22/2015, dated 17.12.2015.

We have considered the submissions of the ld. Departmental 5.

Representative and perused the orders of the authorities below. What has been held by Hon’ble Jurisdictional High Court in the case of Industrial Security & Intelligence India Pvt Ltd. (supra) is reproduced hereunder:-

’5. We find that the Tribunal has righty relied on the decision of the Supreme Court in the case of CIT vs. Alom Extrusions Ltd, reported in 319 ITR 306, whereby the Supreme Court held that omission of second proviso to Section 43B and amendment to first proviso by Finance Act, 2003 are curative in nature and are effective retrospectively. i.e. with effect from 01.01.1988 i.e the date of insertion of first proviso. The Delhi High Court in the case of CIT vs. Amil Ltd, reported in 321 ITR 508 held that if the assessee had deposited employee’s contribution towards Provident Fund and ESI after due date as prescribed under the relevant Act, but before the due date of filing of return under the Income Tax Act, no disallowance could be made in view of the provisions of Section 43B as amended by Finance Act, 2003.

4 -: Hon’ble Jurisdictional High Court had also considered CBDT Circular No.22/2015, dated 17.12.2015 while giving the above judgment. In the circumstances, we do not find any reason to interfere with the order of the ld. Commissioner of Income Tax (Appeals).

In the result, appeal of the Revenue is dismissed. 6.

Order pronounced in the open court at the time of hearing on 31st May, 2018 at Chennai.