NEW VISION SOFTEOCOM & CONSULTABCY P LTD ,BHOPAL vs. THE DCIT/ACIT 3(1) , BHOPAL
What did the Tribunal hold?
The Tribunal held that for assessment years prior to 2021-22, the non-obstante clause of Section 43B does not apply to employee contributions held in trust. Therefore, the assessee is not entitled to deduction for belated payments of employee contributions.
What were the facts?
The assessee company claimed deductions for employee contributions to EPF and ESIC. The Assessing Officer disallowed these claims as the payments were made after the due dates prescribed by the respective Acts, but before the due date for filing the income tax return.
What were the issues?
Whether employee contributions to EPF and ESIC paid after the due dates under respective Acts, but before the income tax return filing due date, are allowable as deductions under Section 36(1)(va) for assessment years prior to 2021-22.
Which sections of the Income-tax Act were involved?
Section 36(1)(va),Section 43B,Section 139(1),Section 2(24)(x)
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Cases cited in this judgment(3)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- Checkmate Services Pvt. Ltd. v. CIT1,392 citing143 Taxmann.com 178 · 2022 · SC · Read judgment
- Harrisons Malayalam Ltd. v. CIT23 citing145 Taxmann.com 608 · 2022 · SC
- Ms. Nalina Dyave Gowda v. Asstt. DIT23 citing146 Taxmann.com 420 · 2023
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEBER & SHRI B.M. BIYANI, ACCOUNTNT MEMBER
आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:-
This assessee’s appeal for A.Y. 2019-20, arises from order of the National Faceless Appeal Centre (NFAC), Delhi dated 16-09-2021, in proceedings under section 250 of the Income Tax Act, 1961; in short “the Act”.
Page No 2 New Vision Softcom & consultancy Pvt. Ltd. vs. CIT(A)/National Faceless Appeal Centre (NFAC)
The assessee has taken the following grounds of appeal:-
Grounds of Appeal Tax effect relating to each Ground of appeal
1. That the order passed by the learned Commissioner of Income tax (Appeals) U/s 250 of the Income tax Act is illegal and bad in law and is prayed to be quashed.
2. That the order passed by the learned Commissioner of Income tax (Appeals) has grossly erred in not allowing the deduction u/s 36(l)(va) of Rs. 5,23,920/- being the employees contribution under EPF and Rs, 35,188/- on account of ESIC which was remitted well before the last date of filing the income tax return u/s 139(1) of the Act as required by section 43B(b) for allowability of deduction on actual payment basis.
3. That the order passed by the learned Commissioner of Income tax (Appeals) has not considered the various judgements which support the appellants claim and also disregarded the fact that Section 43 B which allows certain deductions only on payment basis starts with an non-obstante clause and has an overriding effect over section 36(l)(va).
4. That the order passed by the learned Commissioner of Income tax (Appeals) has erred in computing and confirming the charging interest U/s 234A Rs. 3,987/-, 234B Rs.39,330/- & 234C Rs. 20,134/- respectively.
5. That the order passed by the learned Commissioner of Income tax (Appeals) has computed total income of Rs.49,31,690/- instead of Rs. 43,72,580/- returned by the Appellant.
6. That each ground is independent of and without prejudice to the other grounds raised herein.
7. The Appellant craves, leave to add, amend, alter, modify or withdraw any of the above grounds of appeal at the time of hearing.
Total tax effect (see note below) Rs. 1,45,369/- Page No 3 New Vision Softcom & consultancy Pvt. Ltd. vs. CIT(A)/National Faceless Appeal Centre (NFAC)
The brief facts of the case are that the assessee is a private limited company and is engaged in software development and data processing. The income tax return was electronically filed on 17-10-2019, showing total income of ₹ 43,72,550/-. Thereafter, CPC Bangalore processed the return and an intimation under section 143 (1) of the Act was passed on 01-05- 2020. The income has been assessed at ₹ 49, 31,690/- by making disallowance of claim of ₹ 5,23,920/- in respect of employee’s contribution towards provident fund and ₹ 35,188/- in respect of ESIC, and the total disallowance was ₹ 5,59,108/-. In passing the order, the AO did not allow the claim under section 36(1)(va) of the Act of ₹ 5,23,920/- being the employee’s contribution under EPF and ₹ 35,188/- on account of ESIC which was paid beyond the period prescribed under the respective Acts.
In appeal, Ld. CIT(Appeals) dismissed assessee’s appeal holding that the Finance Act 2021 has clarified this aspect related to the operation of the section. The Ld. CIT(Appeals) made the following observations while dismissing the assessee’s appeal:
“8.4.15 The Finance Act 2021 has cleared the aspect related to the operation of these clauses also. The wordings of the captioned Explanation clearly assert that the clarification will apply to earlier Assessment years also as the newly added Explanation 2 below Section 36 clearly uses the word that "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. Similarly, in the Explanation 5 inserted below 43B also, the words used are "it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied......". 8.4.16. From the wordings above, it is also clear that the above clarificatory amendment brought in by the Finance Act, 2021 applies to the issue in the instant appeal also. While in the Explanatory Memorandum to the Finance Bill, it was stated that "these amendments will take effect from 1st April, 2021 and will Page No 4 New Vision Softcom & consultancy Pvt. Ltd. vs. CIT(A)/National Faceless Appeal Centre (NFAC) accordingly apply to the assessment year 2021-22 and subsequent assessment years", but the said lines are not there in the Finance Act, 2021, which has been finally passed by the Parliament and received Presidential Assent.”
The assessee is in appeal before us against the aforesaid additions confirmed by Ld. CIT(Appeals). Before us the counsel of the assessee agreed that now this position has been clarified against the assessee by the Supreme Court in the case of Checkmate Services (P.) Ltd. [2022] 143 taxmann.com 178 (SC) and accordingly, the issue may be decided in light of the above Supreme Court decision.
We observe that the position on this issue has been clarified by the Hon'ble Supreme Court in the case of Checkmate Services (P.) Ltd.[2022] 143 taxmann.com 178 (SC)which held that for assessment years prior to 2021-22, non obstante clause under section 43B could not apply in case of amounts which were held in trust as was case of employee's contribution which were deducted from their income and was held in trust by assessee- employer as per section 2(24)(x), thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction. The Hon'ble Supreme Court observed that there is a marked difference between nature and character of assessee-employer's contribution and amounts retained by assessee from out of employee's income by way of deduction wherein one is liability to be paid by employer and second is deemed income as per section 2(24)(x) which is held in trust by assessee-employer, thus, said marked difference was to be borne while interpreting obligation of assessee-employer under section 43B of the Act. The Hon'ble Supreme held that the non obstante clause under Page No 5 New Vision Softcom & consultancy Pvt. Ltd. vs. CIT(A)/National Faceless Appeal Centre (NFAC) section 43B could not apply in case of amounts which were held in trust as was case of employee's contribution which were deducted from their income and was not part assessee-employer's income, thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction. Again the Supreme Court in the case of Harrisons Malayalam Ltd.[2022] 145 taxmann.com 608 (SC), dismissed the SLP of the Assessee against order of High Court that where assessee-company failed to pay employees’ contribution towards EPF and ESI within due date prescribed in respective Acts, deduction under section 36(1)(va) was not allowable. Recently in the case of Ms. NalinaDyave Gowda[2023] 146 taxmann.com 420 (Bangalore - Trib.) the assessee during, financial year 2018-19 (assessment year 2019-20) made payment of employees' contribution to ESI and PF beyond due date specified under relevant Act and claimed deduction of same under section 36(1)(va).The Assessing Officer made disallowance of employees' contribution to ESI and PF while electronically processing return of income under section 143(1)(a) of the Act. The ITAT held that disallowance under section 143(1)(a) was valid in view of Supreme Court's decision in case of Checkmate Services (P.) Ltd. v. CIT [2022] 143 taxmann.com 178 and the assessee will not be entitled to deduction of belated payment of ESI and PF of employees' share of contribution as per provisions of section 36(1)(va) of the Act.
6.1 In view of the above observations respectfully following the decision of the Honourable Supreme Court in the case of Checkmate Services Private Page No 6 New Vision Softcom & consultancy Pvt. Ltd. vs. CIT(A)/National Faceless Appeal Centre (NFAC)
Ltd supra and Harrisons Malayalam Ltd supra, we hereby dismiss the assessee’s appeal.
In the result, the appeal of the assessee is dismissed.
Order pronounced as per Rule 34 of I.T.A.T Rules, 1963 on 22/02/2023 Order pronounced in the open court on ......./......../2023
Sd/- Sd/- (B.M. BIYANI) (SIDHHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 22 /02/2023 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order,
Sr. Private Secretary, Income Tax Appellate Tribunal, Indore Page No 7 New Vision Softcom & consultancy Pvt. Ltd. vs. CIT(A)/National Faceless Appeal Centre (NFAC)
Strengthened preparation & delivery of orders in the ITAT 1) Date of dictation 13/02/2023 (dictation on dragon) 2) Date on which the typed draft is placed before the 13/02/2023 Dictating Member & Other Member
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