LOHMAN CASTINGS PVT LTD,ANAKAPALLE vs. INCOME TAX OFFICER, WARD-1, ANAKAPALLE

Per Shri Balakrishnan S, Accountant Member These appeals are filed by the assessee against the orders of the Commissioner of Income Tax (Appeals)-1 [for short, “CIT(A)”], National Faceless Appeal Centre (NFAC), Delhi in DIN & Order Nos.ITBA/NFAC/S/250/2020-21/1037035036(1) & 1037035064(1) dated 18.11.2021 for the Assessment Year (A.Y.) 2019-20. Since the grounds

2 ITA No.262 & 263/Viz/2021, A.Y.2019-20 M/s. Lohman Castings Pvt. Ltd., Anakapalle

raised in these appeals are common, these appeals are clubbed, heard

together and a common order is being passed for the sake of convenience

as under.

company, filed its return of income, admitting total income of

Rs.14,99,020/-. However, the Centralized Processing Centre (CPC) has

processed the return u/s 143(1) of the Income Tax Act, 1961 (in short

‘Act’), determining the taxable income at Rs.17,18,720/-. The CPC has

disallowed a sum of Rs.2,19,696/-, being late payment of Employee

contribution of PF and ESI. The assessee filed a rectification petition u/s

154 of the Act to CPC, which upheld the intimation u/s 143(1).

the CIT(A) which was migrated to the NFAC in terms of notification

No.76/2020 in S.O.No. 3296(E), dated 25/09/2020 from CBDT. The CIT(A)

dismissed the appeal filed against intimation u/s 143(1) and stated that the

decision shall stand covered by the decision in the own case of the

assessee, passed against the appeal against the order u/s 154.

3 ITA No.262 & 263/Viz/2021, A.Y.2019-20 M/s. Lohman Castings Pvt. Ltd., Anakapalle

appeals before the Tribunal. The grounds are extracted from I.T.A.

No.262/Viz/2021.

Ground No. 2 and 3 are with regard to the order of ld.CIT(A)

sustaining the disallowance of deduction claimed on account of Employees’

contribution to PF & ESI.

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positions. The Revenue has not disputed the fact that the payment to

employees contribution to PF is well within the due date of filing of return

of income by the assessee u/s.139(1) of the Act. The assessee relied on the

decisions of ITAT, Visakhapatnam in the case of the Chodavaram Co-

operative Sugars Ltd, Visakhapatnam Vs. Asst.Director of Income Tax,

Bangalore in I.T.A Nos.25 & 28/Viz/2021 dated 23.09.2021 and DCIT,

Circle-1(1) Vs. M/s Andhra Trade Development Corporation, Guntur in

IT.A. No.434/Viz/2019 dated 05.05.2021. The assessee also contended that

amendment brought in by the Finance Act 2021 to section 36(1)(va) of the

Act especially the insertion of Explanation 2 should be construed only as

prospective in as much as the insertion of the amended provision should be

construed only w.e.f. 01.04.2021 i.e. for & from the assessment year 2021-

by Finance Act, 2021 to Section 36(1)(va) of the Act is clarificatory, which

clarify that the definition of ‘due date’ as per Section 43B of the Act and

shall be deemed to have been applied for the purpose of employees

contribution.

and accepted the fact that that the payment to employees contribution to

5 ITA No.262 & 263/Viz/2021, A.Y.2019-20 M/s. Lohman Castings Pvt. Ltd., Anakapalle

PF was made within the due date of filing of return of income by the

assessee u/s.139(1) of the Act.

record. In the instant case, there is no dispute that the return was

processed u/s 143(1), subsequently thereafter sustained in the

rectification order u/s 154, and there was no scrutiny assessment made

u/s 143(3) of the Act. It is settled issue that no debatable issues are

permitted to be made adjustments u/s 143(1) of the Act. In the instant

case, what was added in the intimation u/s 143(1) was the employees

contribution to PF and ESI. Hon’ble Madras High Court in the case of

Redington (India) Ltd. held that employees contribution to PF and ESI is

also allowable deduction, if, the same is paid before the due date for filing

the return of income. This Tribunal in the case of Andhra Trade

Development Corporation in I.T.A. No.434/Viz/2019 dated 05.05.2021

held that debatable issues are not permitted to be made adjustments while

processing the return of income u/s 143(1) of the Act. For the sake of

clarity and convenience, we extract para No.6 of the order in Andhra Trade Development Corporation which reads as under:-

“We have heard both the parties, perused the material placed on record. As per the adjustments made by the CPC, Bangalore to the extent of Rs. 7,31,016/- u/sec. 143(1)(a) is an issue which required to be verified with the relevant

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documents. Therefore, the adjustments are not within the scope provided u/sec. 143(1) (a) of the Act. As per proviso to section 143(1)(a), the AO is required to give an intimation before making such adjustments, either in writing or in electronic mode and the department has not demonstrated that it has given an intimation to the assessee proposing to make such adjustments. Therefore, the adjustment made by the CPC u/sec. 143(1)(a) is beyond the scope of the said section, hence, not permissible and accordingly deleted.” Even otherwise, the ld. CIT(A) has followed the decision of this Tribunal while allowing the set off of losses and the department did not place any other decision of the superior Court to controvert the decision relied upon by the ld. CIT(A) cited supra. Therefore, the issue is squarely covered by the decision of this Tribunal against the Revenue, hence, we find no reason to interfere with the order of ld. CIT(A) and dismiss the appeal of the Revenue.”

this Tribunal, we hold that the addition made by the CPC u/s 143(1) is

unsustainable, accordingly deleted. The appeal of the assessee is allowed.

Now, the question arises, whether by the Finance Act, 2021, the provisions

of Section 36(1)(va) by inserting the Explanation 2 r.w.s. 43B of the Act

have been amended, whereby it is clarified that the provisions of Section

43B of the Act shall not apply and shall be deemed or ought to have been

applied for the purpose of determining the due date under this clause. This

amendment has brought in the statute book to provide certainty about the

applicability of provisions of Section 43B of the Act in spite of belated

payment of employees contribution. We also noted from the memorandum

explaining the provisions to Finance Act, 2021, wherein relevant Clauses to

7 ITA No.262 & 263/Viz/2021, A.Y.2019-20 M/s. Lohman Castings Pvt. Ltd., Anakapalle

said memorandum clearly intended that the amendment shall take effect

from 01.04.2021 and will accordingly apply to assessment year 2021-22

and subsequent assessment years. The relevant Clauses 8 & 9 of the

memorandum explaining the provisions are reproduced as under:-

“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

8 ITA No.262 & 263/Viz/2021, A.Y.2019-20 M/s. Lohman Castings Pvt. Ltd., Anakapalle

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 40 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 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.

In the present case also, before insertion of Explanation 2 to Section

36(1)(va) of the Act, there is ambiguity regarding due date of payment of

employees’ contribution on account of provident fund and ESI, whether the

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due date is as per the respective Acts or up to the due date of filing of

return of income of the assessee. As noted by Hon’ble Supreme Court in the

case of CIT vs. Vatika Township Pvt. Ltd., 367 ITR 466, an amendment

made to a taxing statute can be said to be intended to remove hardship

only of the assessee and not of the Department. Imposing of a retrospective

levy on the assessee would cause undue hardship and for that reason

Parliament specifically chose to make the proviso affective from a

particular date. In the present case also, the amendment brought out by

Finance Act, 2021 by way of Explanation-2 to s. 36(1)(va) of the Act along

with Explanation-5 to s. 43B of the Act w.e.f. 01.04.2021 i.e. for and from

assessment year 2021-22, cannot be applied retrospectively.

statute i.e., by Finance Act, 2021, the provisions of Section 36(1)(va) r.w.s.

43B of the Act amended by inserting Explanation 2 is prospective and not

retrospective. Hence, the amended provisions of Section 43B r.w.s.

36(1)(va) of the Act are not applicable for the assessment year 2018-19 but

will apply from assessment year 2021-22 and subsequent assessment

years. Hence, Ground No 3 of assessee’s appeal is allowed.

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employees contribution to PF and ESI is allowable deduction if the same is

paid before the due date of filing the return of income. In the case of

APEPDCL in I.T.A.No.609/V/2014 dated 29.07.2016, the coordinate bench

of ITAT, Visakhapatnam after considering the decision of Hon’ble

Karnataka High Court in the case of Essae Teraoka (P) Ltd. Vs. DCIT 366

ITR 408 and the decision of coordinate bench of ITAT Hyderabad in the

case of Tetra Soft (India) Pvt. Ltd. Vs. ACIT (2015) 40 ITR (Trib) 470 and

also taking support from the decision of Hon’ble Supreme Court in the case

of CIT Vs. M/s Vegetables Products Ltd., 88 ITR 192, decided the issue in

favour of the assessee. For the sake of clarity and convenience, we extract

para No.5 to 10 which reads as under:

“5. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. The A.O. made additions towards belated payment of employees’ contributions to PF. According to the A.O., employees’ contribution to provident fund is deductible under the provisions of section 36(1)(va) of the Act, if the same is paid on or before the due date specified under the provident fund Act. The A.O. further was of the opinion that in view of the clear provisions of section 2(24)(x) r.w.s. 36(1)(va) of the Act, any recovery from employees towards provident fund contribution is deemed to be income of the assessee, if the employer not paid the same to the provident fund account of the employee within due date specified under the provisions of PF Act. It is the contention of the assessee that second proviso to section 43B of the Act provides that no deduction shall be allowed unless such sum is actually been paid on or before due date as specified in explanation to 36(1)(va) of the Act which was omitted by the Finance Act, 2003 w.e.f. 1.4.2004 and accordingly, there was no special provision regarding employees’

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contribution to PF. It is further contended that as per the amended provisions of section 43B of the Act, any sum payable by the assessee as an employer by way of contribution to PF shall be allowed, if the same is paid on or before the due date of filing of return of income u/s 139(1) of the Act. 6. The only issue to be resolved is whether the assessee would be entitled to claim deduction for the employees’ contribution made to PF after the due date prescribed under the PF Act, but before the due date prescribed for filing of income tax return in the light of the provisions contained in section 36(1)(va) of the Act and section 43B(b) of the Act. It is the contention of the assessee that there is no distinction between employer and employee contribution after omission of second proviso of section 43B of the Act by Finance Act, 2003 w.e.f. 1.4.2004. We find force in the arguments of the assessee for the reason that there is no difference between employees and employer contribution under the PF Act. Section 6 of Provident Fund Act provides for contribution and the manner in which such contribution shall be made. Paragraph 30 of the PF Scheme provides for payment of contributions. As per the said scheme, the employer at the first instance shall make the total contribution including employees’ share. Paragraph 32 provides for recovery of member share of contribution and as per the scheme, the employer can recover the employees’ share from the wages paid to the employee. Therefore, as per the PF Act and scheme of contributions, the contributions means and include both employees’ and employer’s share. Similarly, section 2(c) of the Provident Fund Act defines the contribution to mean a contribution payable in respect of a member under the scheme or the contribution payable in respect of an employee to whom the scheme applies. There is a prescribed mode of payment of contributions under the PF Act. Under the said Act, the employer shall contribute both employees and employer share along with administrative charges before the due date specified under the PF Act. The Act prescribed only one due date for depositing the contribution i.e. 15th of subsequent month with the grace period of 5 days which indicates that there is no difference between employee and employer contribution. If the legislature intends to differentiate employees and employer contribution, then there would have been two due dates like in the case of Income Tax Act. Therefore, from the above, it is clear that the Provident Fund Act does not differentiate employees and employer contribution and contribution means both employees and employer contribution under the PF scheme. 7. Section 43B of the Act provides for certain deductions to be allowed only on actual payment basis. Sub clause (b) of section 43B of the Act covers any sum payable by the assessee as an employer by way of contribution to any Provident

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fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees. The proviso to section provides that any sum paid by the assessee on or before the due date of furnishing return of income u/s 139(1) of the Act, then no disallowance can be made under the provisions of section 43B of the Act. A careful consideration of section 43B of the Act, it is clear that an extension is granted to the assessee to make the payment of PF contributions or any other fund till the due date of furnishing return of income u/s 139(1) of the Act. Therefore, in our opinion, there is no difference between employees and employer contribution to PF and if such contribution is made on or before the due date of furnishing return of income u/s 139(1) of the Act, then deduction is to be allowed under the provisions of section 43B of the Act. 8. The Hon’ble Karnataka High Court, in the case of Essae Teraoka (P) Ltd. Vs. DCIT 366 ITR 408 took the view that the word contribution occurring in section 43B of the Act would include employees’ contribution to PF in the light of the definition of the word contribution as per the provisions of section 2(c) of the PF Act. As per the said section, contribution would mean both employer’s contribution and employees’ contribution. Accordingly, it was held that the provisions of section 43B of the Act allowing deduction for payment made before the due date of filing of Income Tax return cannot be ignored. Similarly, the ITAT, Hyderabad Tribunal in the case of Tetra Soft (India) Pvt. Ltd. Vs. ACIT (2015) 40 ITR (Trib) 470 held that when assessee remitted employees’ contribution to PF within due date of filing return of income u/s 139(1) of the Act, amount of employees’ contribution to PF cannot be disallowed. Similar view was upheld by the Chennai bench of the ITAT, in the case of ACIT Vs. Farida Shoes Pvt. Ltd. (2016) 46 CCH 29. The coordinate bench held that if assessee had not deposited employees’ contribution towards provident fund up to the due date as prescribed under relevant statute, but before due date of filing of return no disallowance could be made in view of the provisions of section 43B of the Act. In the case of CIT Vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. 35 Taxman 616, the Hon’ble High Court of Rajasthan, after referring to the apex court decision in the case of CIT Vs. Alom Extrusions Ltd. 319 ITR 306 & CIT Vs. Vinay Cement Ltd. held that the deductions should be allowed for the payment of employees’ contribution made before the due date of filing of return. Similarly, in the case of CIT Vs. State Bank of Bikaner, the Hon’ble Rajasthan High Court held that contribution paid after the due date under the respective Act, but before filing the return of income u/s 139(1) of the Act cannot be disallowed u/s 43B of the Act and or u/s 36(1)(va) of the Act. 9. The Ld. D.R. relied upon the decision of Hon’ble High Court of Kerala, in the case of CIT vs. Merchem Ltd, reported in (2015) 378 ITR 443 and submitted

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that employees’ contribution to provident fund is allowed as deduction, if the same is deposited on or before the due date specified under the provisions of provident fund Act. The D.R. also relied upon the decision of Gujarat High Court, reported in (2014) 366 ITR 170, wherein the Hon’ble Gujarat High Court held that since assessee had not deposited said contribution to respective fund account on the date as prescribed in explanation to section 36(1)(va) of the Act, disallowance made by the A.O. was just and proper. Though, the D.R. relied upon certain judicial precedents which are in favour of the revenue, in view of the decision of Hon’ble Supreme Court, in the case of CIT Vs. M/s. Vegetables Products Ltd. reported in 88 ITR 192, wherein the Hon’ble Supreme Court held that if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted, therefore, by respectfully following the decision of Supreme Court, when divergent views are expressed by different judicial forums, we prefer to follow the views expressed by the Courts which are in favour of the assessee. 10. Considering the facts and circumstances of this case and also following the judicial precedents as discussed above, we are of the view that there is no distinction between employees’ and employer contribution to PF, and if the total contribution is deposited on or before the due date of furnishing return of income u/s 139(1) of the Act, then no disallowance can be made towards employees’ contribution to provident fund. The CIT(A) after considering the relevant details rightly deleted the additions made by the A.O. We do not see any reasons to interfere with the order of the CIT(A). Hence, we inclined to uphold the CIT(A) order and dismiss the appeal filed by the revenue.”

the above cases, we hold that on merits also, the assessee succeeds in

appeal. Accordingly, Ground Nos.2 and 3 raised in appeal of the assessee is

allowed.

infructuous, hence no adjudication required.

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Order Pronounced in open Court on 08th April, 2022.

Sd/- Sd/- (दुव्िूरु आर.एऱ रेड्डी) (एस बाऱाकृष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याययकसदस्य/JUDICIAL MEMBER ऱेखा सदस्य/ACCOUNTANT MEMBER Dated : 08.04.2022 L.Rama, SPS आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. ननधधाररती/ The Assessee– Lohman Castings Pvt. Ltd., C5 to C7, NH-5 Industrial Development Area, Anakapalle 2. रधजस्व/The Revenue – Income Tax Officer, Ward 1, Anakapalle 3. आयकर आयुक्त (अऩीऱ)/ The Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi 4. Principal Commissioner of Income Tax 5. ववभधगीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, ववशधखधऩटणम/ DR,ITAT, Visakhapatnam 6.गधर्ा फ़धईऱ / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam