CHIRMI OVERSEAS,JAIPUR vs. DY. COMMISSIONER OF INCOME TAX, CIRCLE-4, JAIPUR

आयकरअपीलीय अधिकरण] जयपुरन्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR JhlanhixkslkbZ]U;kf;dlnL; ,oa JhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihy la-@ITA No. 270/JP/2021 fu/kZkj.ko"kZ@AssessmentYear : 2018-19 cuke M/s. Chirmi Overseas The DCIT Circle-4 Vs. 44-47, Akeda Industrial Area AkedaDungar Road No. 18, VKI Area, NCRB, Jaipur – 302 018 Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACFC 0210 G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by :Shri Surender Shah, CA jktLo dh vksj ls@Revenue by: Smt. Monisha Choudhary (JCIT) lquokbZ dh rkjh[k@Date of Hearing : 15/02/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 29/03/2022 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal by the assessee is directed against the order of the ld. CIT(A)

dated 06-10-2021 National Faceless Appeal Centre, New Delhi [ hereinafter

referred to as (NFAC) ] for the assessment year 2018-19.

view of the prevailing situation of Covid-19 Pandemic. 3.0 The grounds of appeal raised by the assessee are as under:- ‘’1 That the ld. CIT(A), National Faceless Appeal Cenrtre,Delhi has erred in law in sustaining the addition made by CPC, Bangalore u/s 2(24(x) read with section 36(1)(va) of the Act of Rs.91,853/- and Rs. 6,951/- on account of late deposit of Employees Contribution to PF and ESI respectively without appreciating the fact that the same was deposited before due date of filing of

2 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur return and not be following the binding decision of Jurisdictional High Court of Rajasthan that if the employees contribution is deposited before due date, no disallowance could be made u/s 36(1)(va) of the Act. 2. That without prejudice to the Ground No. (1), the ld. CIT(A), NFAC, Delhi is further wrong and has erred in law in holding that explanation 2 to Section 36(1)(va) introduced by Finance Act is prospective in nature and therefore, disallowance confirmed by ld. CIT(A) on this account is wrong and bad in law.’’

3.1 Thus, the only issue arises in this appeal of the assessee is regarding

disallowance of employee’s contribution of PF and ESI deposited belatedly but

before due date of filing of return of income U/s 139(1) of the Income Tax Act,

1961 (in short, the Act).

3.2 The assessee filed his return of income on 16.10.2019 which was

processed u/s 143(1) of the Act. In that return an adjustmentwere made for Rs.

98,804/- as per the provisions of section 36(1)(va) of the Act of Rs. 91,853/-

and Rs. 6,951 on account of late deposit of employee’s contribution of PF and

ESI respectively. There was another adjustment and Rs. 1,23,226/- as per provision of section 43B being the liability existed on the 31st March deposited

belatedly but the same has been paid before the due date of filling the return of

income. The assessee challenged the said adjustment before the ld.

CIT(A)/NFAC and contended that as per the binding precedents if the payment

is made in the government account before due date of filing of return of income

U/s 139(1) of the Act then as per provisions of Section 43B of the Act, no

disallowance is made. The ld. CIT(A)/NFAC did not accept this contention of

the assessee and confirmed the disallowance by considering the amendment in

3 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur Section 36(1)(va) of the Act whereby an explanation (2) as well as explanation

(5) to Section 43B of the Act was inserted being retrospective in nature.

3.3. The Hon'ble Rajasthan High Court as well as other Hon'ble High Courts

are consistently holding that where Assessee had paid employees contribution

of PF and ESI, though beyond due date(s) under respective Acts but prior to due

date of filing the Return of income under sec. 139(1) of IT Act, the payments

cannot be disallowed u/s. 43B. The assessee contended that avoiding the

binding nature of judgments, the CPC, Bangalore was not justified in making

the adjustment of 98,804 &Rs.1,23,226/- which was paid before due date of

filing of Return of Income and in rejecting application. The matter were carried

to CIT(A)/NFAC by the assessee and the appeal of the assessee is dismissed

and the decision of the Jurisdictional High court is not considered while passing

the order by the NFAC and has relied on the decision of Hon'ble Gujarat High

Court in the case of Gujarat State Transport Corporation, Kerala High Court in

the case of Merchem Ltd. and Hon'ble Madras High also where the contrary

views there in respect of this issue. The NFAC has also relied upon various

decision connected these Hon'ble High Courts and the amendment made in the

Finance Act, 2021 and contended that the amendment being curative in nature

should apply retrospectively.

4 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur

3.4. Since the CIT(A)/NFAC has quoted the amendment made in Finance Act,

2021, it is worthwhile to record the extract of the memorandum explaining the

change made in the relevant provisions of the Act.

Rationalisation of various Provisions Payment by employer of employee contribution to a fund on or before due date

Clause (24) of section 2 of the Act provides an inclusive definition of the income. Sub- clause (x) to the said clause provide that income to include any sum received by the assessee from his employees as contribution to any provident fund or superannuation fund or any fund set up under the provisions of ESI Act or any other fund for the welfare of such employees. Section 36 of the Act pertains to the other deductions. Sub- section (1) of the said section provides for various deductions allowed while computing the income under the head =Profits and gains of business or profession‘.Clause (va) of the said sub-section provides for deduction of any sum received by the assessee from any of his employees to which the provisions of sub- clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. Explanation to the said clause provides that, for the purposes of this clause, "due date" to mean the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued there-under or under any standing order, award, contract of service or otherwise. Section 43B specifies the list of deductions that are admissible under the Act only upon their actual payment. Employer's contribution is covered in clause (b) of section 43B. According to it, if any sum towards employer's contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees is actually paid by the assessee on or before the due date for furnishing the return of the income under sub-section (1) of section 139, assessee would be entitled to deduction under section 43B and such deduction would be admissible for the accounting year. This provision does not cover employee contribution referred to in clause (va) of sub-section (1) of section 36 of the Act. Though section 43B of the Act covers only employer‘s contribution and does not cover employee contribution, some courts have applied the provision of section 43B on employee contribution as well. There is a distinction between employer contribution and employee‘s contribution towards welfare fund. It may be noted that employee‘s contribution towards welfare funds is a mechanism to ensure the compliance by the employers of the labour welfare laws. Hence, it needs to be stressed that the employer‘s contribution towards welfare funds such as ESI and PF needs to be clearly distinguished from the employee‘s contribution towards welfare funds. Employee‘s contribution is employee own money and the employer deposits this contribution on behalf of the employee in fiduciary capacity. By late deposit of employee contribution, the employers get unjustly enriched by keeping the money belonging to the employees. Clause (va) of sub-section (1) of Section 36 of the Act

5 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur was inserted to the Act vide Finance Act 1987 as a measures of penalizing employers who mis-utilize employee‘s contributions. Accordingly, in order to provide certainty, it is proposed to – (i) amend clause (va) of sub-section (1) of section 36 of the Act by inserting another explanation to the said clause to clarify that the provision of section 43B does not apply and deemed to never have been applied for the purposes of determining the "due date" under this clause; and (ii) amend section 43B of the Act by inserting Explanation 5 to the said section to clarify that the provisions of the said section do not apply and deemed to never have been applied to a sum received by the assessee from any of his employees to which provisions of sub-clause (x) of clause (24) of section 2 applies. These amendments will take effect from 1st April, 2021 and will accordingly apply to the assessment year 2021-22 and subsequent assessment years.

3.5. Thus, it is clear that the provision is not retrospective and prospective.

Before the Tribunal, the ld. AR of the assessee has submitted that this issue is

covered by the various decisions of this Tribunal as well as the Hon’ble

Jurisdictional High Courts. He has relied upon the decision of the Coordinate

Bench of this Tribunal in the case of M/s Kogta Financial (India) Ltd. Vs CPC

order dated 11/11/2021 in ITA No. 182/JP/2021.

3.6. On the other hand, the ld. DR has submitted that the amendment to

Section 36(1)(va) as well as 43B of the Act vide Finance Bill, 2021 is

clarificatory in nature and therefore, applicable with retrospective effect. The ld.

DR has submitted that the ld. CIT(A) has relied upon the decision of the Delhi

Benches of the Tribunal in the case of Vedvan Consultants Pvt. Ltd. in ITA No.

1312/Del/2020 order dated 26/08/2021.

6 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur 3.7. We have considered the rival submissions as well as the relevant material

on record. There is no dispute that prior to the amendment brought by the

Finance Bill, 2021 in Section 36(1)(va) as well as Section 43B of the Act, the

issue of allowability of employees contribution towards PF and ESI and

depositing the same in the government account before the due date of filing of

return of income U/s 139(1) of the Act was settled and decided in favour of the

assessee by various binding precedents of Hon’ble High Courts including the

Jurisdictional High Court. The limited controversy is whether the amendment

brought to Section 36(1)(va) as well as 43B of the Act is applicable

retrospective or from assessment year 2021-22 as it is specifically stated in the

memorandum of Finance Bill, 2021. At the outset, it is noted that the

Coordinate Bench of this Tribunal in the case of M/s Kogta Financial (India)

Ltd. Vs CPC (supra) has considered this issue in para 5 to 7 as under:

“5. We have heard the rival contentions and perused the material available on record. In case of Mohangarh Engineers and Construction Company vs DCIT, CPC (Supra), speaking through one of us, we have extensively dealt with the identical matter relating to employee’s contribution towards ESI/PF and our findings therein read as under:- “13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees’s contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees’s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act.

7 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur

8 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur

amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act.” 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur DugdhUtpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corporation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon’ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon’ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon’ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs 4,38,530/- so made by the CPC towards the delayed deposit of the employees’s contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon’ble Rajasthan High Court.” 6. In the instant case, admittedly and undisputedly, the employees’ contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, the ld D/R has referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, I find that there are express wordings in the said memorandum which says “these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years”. In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be

9 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur

applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- “7. The Hon'ble Karnataka High Court in the case of EssaeTeraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon'ble Karnataka High Court. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also. On this aspect, we find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted.” 7. In light of the aforesaid discussions and in the entirety of facts and circumstances of the case and following the consistent decisions taken by the various Benches of the Tribunal, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 37,62,586/- so made by the CPC towards the deposit of the employees’s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted.”

Thus, it is clear from the above cited decision that this Tribunal has considered

various decisions on this issue and by following decisions of the Coordinate

Benches of the Tribunal, this issue was decided in favour of the assessee by

holding that amendment in Section 36(1)(va) as well as Section 43B of the Act

by way of inserting the explanation vide Finance Bill, 2021 are applicable only

10 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur

from A.Y. 2021-22 and subsequent assessment years and therefore, the said

amendment is not applicable to the assessment year under consideration.

3.8. Similar view has been taken by the Delhi Benches of the Tribunal in the

case of Chatru Mal Garg Vs ACIT (supra) in para 7 as under:

“7. I have heard the rival submissions and perused the materials on record. The issue in the present ground is with respect to disallowance under section 36(1)(va) of the Act. It is an undisputed fact that there has been slight delay in the deposit of employees’ contribution of PF and ESI by the assessee and the contribution have been deposited beyond the due date prescribed by the relevant authorities but at the same time it is also a fact that the amounts have been deposited with the appropriate authorities by the assessee before filing the return of income for the relevant assessment year. I find that Hon’ble Delhi High Court in the case of CIT vs. AIMIL Ltd. (supra) has held that no disallowance under section 36(1)(va) of the Act is called for when the amounts are deposited before filing the return of income. Similar view has also been taken by the Hon’ble Punjab & Haryana High Court in the case of CIT vs. Hemla Embroidery Mills (P) Ltd (supra) and Indian Geotechnical Services (supra). As far as the applicability of amendment made by Finance Act 2021 is concerned, I find that the Co-ordinate Bench of Tribunal in the case of Indian Geotechnical Services (supra) has held that amendment made by Finance Bill 2021 shall take effect from 1st April 2021 and will accordingly apply to A.Y. 2021-11 and subsequent years. In the present case assessment year involved is 2018-19 and therefore following the aforesaid decision in thecase of Indian Geotechnical Services (supra), I am of the view that the amended provisions would have no application to the case under consideration. Before me, Learned DR has relied on the decision of Co-ordinate Bench of Tribunal in the case of Vedvan Consultants Pvt. Ltd. (supra). It is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon’ble Supreme Court. I therefore following the decision of High Courts cited hereinabove and the decision of the Co-ordinate Bench of Tribunal, I am of the view that no addition u/s 36(1)(va) of the Act is called for in the present case. Therefore I direct the AO to delete the addition. Thus the ground of assessee is allowed.’’

Thus, it is clear that the Delhi Benches of the Tribunal has considered the earlier

decision of the Tribunal in the case of Vadvan Consultants Pvt. Ltd. (supra)

which was relied upon by the ld. CIT(A) as well as the ld. DR and the issue was

11 ITA No. 270/JP/2021 Chirmi Overseas Vs. DCIT, Cir-4, Jaipur decided by following the decisions of Hon’ble Delhi High Court and Hon’ble

Punjab & Haryana High Court and the decisions of the Division Bench of the

Delhi Tribunal in the case of Indian Geotechnical Services in ITA No.

622/Del/2018 order dated 27/08/2021. Accordingly, in view of the above

discussions as well as following the decisions of the Coordinate Benches of the

Tribunal, this issue is decided in favour of the assessee and consequently, the

disallowance made on account of employees contribution towards PF & ESI &

GST deposited before due date of filing of return of income U/s 139(1) of the

Act amounting to Rs. 98,804/- and 1,23,226/- are deleted.

4.0. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 29/03/2022

Sd/- Sd/- ¼jkBksMdeys'kt;UrHkkbZ ½ ¼lanhi xkslkbZ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 29 /03/2022 *Mishra आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- ChirmiOveseas, Jaipur ,. 2. izR;FkhZ@ The Respondent- The DCIT, Circle-4, Jaipur . vk;djvk;qDr@ The ld CIT 3. 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZQkbZy@ Guard File (ITA No. 270/JP/2021) 6. vkns'kkuqlkj@ By order,

सहायकपंजीकार@Aेेज. त्महपेजतंत