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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI T.R. SENTHIL KUMAR & SHRI B.M. BIYANIShri Vijay Bansal, ARs Shri Pradeep Kumar
Feeling aggrieved by respective orders appealed against, as per undermentioned details, the assessees have filed these appeals before us. As the issue involved in all these appeals is same except the difference of amounts involved, we proceed to decide all appeals by this common order:
S. Assessee Order appealed against Arising out of order A.Y. No. Passed by Dated Passed by dated
ITA CIT(A), 31.03.2022 CPC, 16.10.2019 2018-19 No.115/Ind/2022 NFAC, Bangalore Delhi Indore Biotech Inputs & Research Pvt. Ltd.
ITA CIT(A), 14.07.2021 CPC, 18.11.2019 2019-20 No.161/Ind/2021 Bangalore NFAC, Shyam Sunder Delhi Trivedi
3. ITA CIT(A), 28.07.2021 CPC, 11.03.2020 2019-20 No.165/Ind/2021 NFAC, Bangalore Delhi Shri Pradeep Kumar Pariyani
2. In all these cases, the return of income filed by assessee was processed by Ld. AO u/s 143(1) of the Act after making disallowance on account of delayed payment of employees’ contributions to Provident Fund/Employees State Insurance (“PF/ESI”). The assessee challenged disallowance in first-appeal to Ld. CIT(A). However, Ld. CIT(A) confirmed the disallowance and dismissed assessee’s appeal. Again the order of Ld. CIT(A), the assessee has now preferred appeal before us.
The sole issue involved is related to the disallowance u/s 36(1)(va) of the Act in respect of delayed payment of employee’s contributions to PF / ESI. This issue is consistently being decided in favour of assessee by Co- ordinate Benches of ITAT, Indore in several orders. One such recent order
ITA No.115/Ind/2022 & others Indore Biotech Input and Research Pvt. Ltd. & others Page 3 of 7 in the case of Palash Badole Vs. ITO, 5(2), Bhopal, order dated 23.08.2022 is reproduced below for an immediate reference:
“6. The Ld. AR submitted that the Ld. AO has made the disallowance without appreciating that though the assessee had not deposited the employees’ contributions to PF / ESI upto the due dates prescribed under the PF / ESI laws, yet the assessee had deposited the same to the respective funds within the time permitted u/s 43B of the Act i.e. upto the due date u/s 139(1) for filing the return of income and hence no disallowance is attracted in view of numerous decisions of Hon’ble High Courts favouring the assessee. Some of the decisions relied upon by Ld. AR are mentioned below: (a) Hon’ble Delhi High Court in AIMIL Limited (2010) 321 ITR 508. (b) Hon’ble Allahabad High Court in Sagun Foundary Pvt. Ltd. Vs. CIT 145 DTR 265 (c) Hon’ble Rajasthan High Court in CIT Vs. Rajasthan State Beverages Corporation Ltd. / Rajasthan State Ganganagar Sugar Mill (2017) 250 Taxman 32 6.1 Ld. AR further submitted that the issue is also squarely covered in favour of the assessee by several decisions of this very Bench of ITAT. 6.2 Ld. AR also submitted that even otherwise the impugned disallowance is debatable in nature and outside the scope of section 143(1)(iv) of the Act invoked by the Ld. AO and therefore also not sustainable, as held by ITAT, Visakhapatnam Bench in M/s. S.V. Engineering Constructions India (P) Limited vs. DCIT (ITA No.130/Viz/2021) order dated 23.09.2021.
Per contra, the Ld. DR relied upon the orders of lower authorities. He further submitted that in following decisions it has been held that once the employees’ contributions are paid after the due dates under PF / ESI laws, disallowance is attracted even if the assessee has made payments within the time allowed u/s 43B i.e. upto the due date u/s 139(1) for filing of return: (a) Hon’ble Gujarat High Court in CIT vs. Gujarat State Road Transport Corporation, (2014) 41 taxmann.com 100 (b) Hon’ble Gujarat High Court in Pr. CIT vs. M/s Suzlon Energy Ltd. (2020) 115 taxmann.com 340 & others Indore Biotech Input and Research Pvt. Ltd. & others Page 4 of 7 (c) Hon’ble Kerala High Court in CIT Vs. Merchem Ltd. (2015) 378 ITR 443 7.1 Ld. DR further submitted that the Finance Act, 2021 has also inserted Explanation 2 to Section 36(1)(va) and Explanation 5 to Section 43B as under: Section 36(1)(va): “Explanation 2.—For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the "due date" under this clause; Section 43B: “Explanation 5.—For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub- clause (x) of clause (24) of section 2 applies.” 7.2 Ld. DR submitted that with the introduction of these amendments, it is very much clear that the due dates specified in section 43B shall not apply. According to the Ld. DR, the impact would be such that if the employees’ contributions are paid after the due dates under the PF / ESI laws, disallowance would happen. The Ld. DR further submitted that the words “… shall be deemed never to have been applied …” appearing in these newly inserted Explanations clearly demonstrate that the amendments, though inserted from 01.04.2021, are clarificatory in nature and hence they would apply retrospectively. Therefore, according the Ld. DR the amendments are applicable to the assessment-year involved in the present appeal too and hence the disallowance made by Ld. AO is very much in accordance with the law.
We have considered the rival contentions and submission of both sides and also perused the relevant materials available on record. Before proceeding further we would like to mention that the assessee has deposited the impugned contributions to the PF / ESI, though after due date under PF / ESI law but within the time allowed u/s 43B i.e. upto the due date u/s 139(1) for filing return of income and there is no dispute on this point by revenue.
Regarding the decisions relied upon by both sides, we observe that there are divergent views of Hon’ble High Courts on the allowability of employees’ contributions to PF / ESI paid after due dates under the PF / ESI laws but within the time allowed ITA No.115/Ind/2022 & others Indore Biotech Input and Research Pvt. Ltd. & others Page 5 of 7 u/s 43B. While the Ld. AR has relied upon various decisions favouring to the assessee, the Ld. DR has quoted the decisions against the assessee. We are also informed by both sides that there is no decision of Hon’ble jurisdictional High Court of Madhya Pradesh on this issue. In this situation, we are mindful of the decision in Vegetable Products Ltd. 88 ITR 192 wherein the Hon’ble Supreme Court has held that if two reasonable constructions of a taxing provision are possible, that construction which favours the assessee must be adopted. In view of this, the decisions favouring the assessee shall get preference over the decisions against the assessee. Being so we hold that the employees contributions paid after due date under PF / ESI law but within the time allowed u/s 43B, are allowable as deduction.
Regarding the amendments made through Finance Act, 2021, it is specifically mentioned by the legislature that the amendments are effective from 01.04.2021. Further the Memorandum explaining the Provisions in the Finance Bill, 2021 clearly prescribes thus: “These amendments will take effect from 1st April, 2021 and will accordingly apply to the assessment year 2021-22 and subsequent assessment years.” Thus, the legislature itself has categorically stated that the amendments shall apply to the assessment year 2021-22 and subsequent assessment years. Therefore these amendments are not applicable to the assessment-years preceding the assessment-year 2021-22 i.e. not applicable upto assessment- year 2020-21. This has also been held so in several decisions of ITAT Benches including following: (a) ITAT Kolkata in Harendra Nath Biswas Vs. DCIT, for A.Y. 2019-20, order dated 16.07.2021 (b) ITAT Hyderabad in Salzgitter Hydraulics Private Limited Vs. ITO, ITA No. 644/Hyd/2020 for A.Y. 2019-20, order dated 15.06.2021 (c) ITAT Jodhpur in Akbar Mohammad Vs. ACIT, CPC, Bangalore ITA No. 108 &109 / Jodh / 2021 for A.Y. 2018- 19 and 2019-20, order dated 31.01.2022 11. It is also noteworthy that this Bench has recently decided several appeals, a few mentioned hereunder, wherein the similar disallowance made by Ld. AO has been deleted: (a) ITA No. 175 / Ind / 2021 Shri Virendra Kumar Tiwari Vs. CIT(A), NFAC, order dated 30.03.2022 ITA No.115/Ind/2022 & others Indore Biotech Input and Research Pvt. Ltd. & others Page 6 of 7 (b) / Ind / 2021 M/s Prestige Fabricators Pvt. Ltd. Vs. ACIT-4(1), Indore order dated 30.03.2022 (c) ITA No. 223 / Ind / 2021 Kamal Kumar Jain Vs. DCIT, CPC, Bangalore, order dated 30.03.2022 12. In view of foregoing discussion, we observe that employees’ contributions to PF / ESI paid after due date under PF / ESI laws but within the time allowed u/s 43B i.e. upto the due date u/s 139(1) for filing of return is allowable as deduction in computing taxable income of business and the assesse had rightly claimed the same. Therefore the Ld. AO as well as Ld. CIT(A) were not justified in disallowing the claim of the assessee. We therefore delete the disallowance made by Ld. AO and confirmed by Ld. CIT(A).
In the result, these appeals are allowed.”
Respectfully following the consistent view being taken by Hon’ble Co-ordinate Benches, we are also inclined to hold that the employees’ contributions to PF / ESI paid after due date under PF / ESI laws but within the time allowed u/s 43B i.e. upto the due date u/s 139(1) for filing of return is allowable as deduction in computing taxable income of business and the assessee had rightly claimed the same. Therefore, the Ld. AO as well as Ld. CIT(A) were not justified in disallowing the claim of the assessee. We therefore delete the disallowance made revenue authorities. The assessee succeeds.
In the result, all these appeals are allowed. One copy of order shall be placed in each file.