KAIRALI EXPORTS,KILIMANOOR vs. ACIT CIRCLE 1(2), TRIVANDRUM

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Sanjay Arora, AM & Shri Anil Kumar Dugar, JM ITA No.130/Coch/2023 :Asst.Year 2014-2015 M/s.Kairali Exports The Assistant Commissioner “Ambadi”, Pulimoth PO of Income-tax, Corporate v. Kilimanoor Cir.1(2), Trivandrum. Kerala 695 612. PAN :AAKFK2762R. (Appellant) (Respondent)

Appellant by : --- None --- Respondent by :Smt.J.M.Jamuna Devi, Sr.DR Date of Pronouncement : 15.04.2024 Date of Hearing : 15.04.2024 O R D E R Per Anil Kumar Dugar, JM : This appeal at the instance of the assessee is directed against the Commissioner of Income-tax (Appeals)’s [“CIT(A)]” for short] order dated 15.12.2022 passed u/s 250 of the Income-tax Act, 1961 (“the Act” for short). The relevant assessment year is 2014-2015.

2 ITA No.130/Coch/2023 M/s.Kairali Exports 3. At the time of call, none appeared on behalf of the assesse. However, Learned Departmental Representative pointed out that the issue involved in this case is duly covered by the judgment delivered by the Hon’ble Supreme Court in the case of Checkmate Services P.Ltd. v. CIT [(2022) 448 ITR 518 (SC).

3 ITA No.130/Coch/2023 M/s.Kairali Exports Checkmate Services P.Ltd. (supra) by the Hon’ble Supreme Court in Checkmate Service P.Ltd., and relied upon by the Ld.D.R., as hereunder:

“53. The distinction between an employer’s contribution which is its primary liability under law – in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers’ income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts – the employer’s liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees’ income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under Section 43B. 54. In the opinion of this Court, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the employer’s obligation to deposit the amounts retained by it or deducted by it from the employee’s income, unless the condition that it is deposited on or before the due date, is correct and justified. The non- obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees’ contributions- which are deducted from their income. They are not part of the assessee employer’s income, nor are they heads of deduction per se in the form of statutory pay out. They are others’ income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, and deemed an income, is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date. If such interpretation were to be adopted, the nonobstante clause under Section 43B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee’s contribution on or before the due date as a condition for deduction.

4 ITA No.130/Coch/2023 M/s.Kairali Exports

In the light of the above reasoning, this court is of the opinion that there is no infirmity in the approach of the impugned judgment. The decisions of the other High Courts, holding to the contrary ,, do not lay down the correct law. For these reasons, this court does not find any reason to interfere with the impugned judgment. The appeals are accordingly dismissed.” 9. As it is an admitted fact that the assessee had remitted Rs.17,49,196 being the amount of employees’ contribution. after the prescribed due date, we are constrained to hold that the authorities below had rightly disallowed the deduction of said sum of Rs.17,49,196 u/s.36(1)(va) of the Act.

Order pronounced in the open court on this 15th Day of April, 2024.

Sd/- Sd/- (Sanjay Arora) (Anil Kumar Dugar) ACCOUNTANT MEMBER JUDICIAL MEMBER Cochin ; Dated : 15th April, 2023. Devadas G* Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A),NFAC, Delhi 4. The CIT Concerned, Cochin. 5. The DR, ITAT, Cochin. 6. Guard File. Asst.Registrar/ITAT, Cochin