ACRO HR SOLUTIONS INDIA PVT LTD,NEW DELHI vs. DCIT CPC, BANGALORE

Per Dr. B. R. R. Kumar, Accountant Member:

“1. That on the facts and circumstances of the case and in the law, the ld. CIT(A) has grossly erred in confirming the disallowance of Rs.13,05,094/- u/s 36(1)(va) of the Act though the assessee has deposited the contribution of ESI/PF from the employees before the due date of filing of return of income u/s 139.

2. That on the facts and circumstances of the case and in the law, the ld. CIT(A) failed to appreciate that disallowance of Rs.13,05,094/- u/s 36(1)(va) with respect to employees contribution of ESI/PF vide intimation u/s 143(!) is not permissible being a debatable issue subject to conflicting views from High Acro HR Solutions India Pvt. Ltd. Courts. That the ld. CIT(A) has failed to appreciate that adjustment on any debatable issue is outside the purview of section 143(1).”

Acro HR Solutions India Pvt. Ltd. contribution required to be deposited by the employer. The first one is 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. The Hon’ble Apex Court held as under:

"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 43 B 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 non-obstante clause under Section 43 B 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."

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