“Section 36(1)(va)”

Section References (mined)Section 36Section 36(1)(va)2,467 judgments

The decision most relied on for Section 36(1)(va) is CIT v. AIMIL Ltd. (321 ITR 508), cited in 1,629 judgments on BharatTax.

Leading authorities on Section 36(1)(va)

CIT v. AIMIL Ltd.

321 ITR 508 · 2010 · High Court

1,629

citing judgments

Employee contributions to PF and ESIC, deposited beyond the due date under the respective Acts but within the due date for filing the income tax return under Section 139(1), are allowable deductions under Section 36(1)(va). Such disallowance cannot be made during processing under Section 143(1).

Checkmate Services Pvt. Ltd. v. CIT

143 Taxmann.com 178 · 2022 · Supreme Court

1,392

citing judgments

Employee contributions to provident fund and ESI deposited by an employer beyond the due dates prescribed under the respective special Acts are not allowable as a deduction under section 36(1)(va) of the Income-tax Act, 1961. Such disallowance can be made during processing under section 143(1).

CIT v. Alom Extrusions Ltd.

319 ITR 306 · 2009 · Supreme Court

1,344

citing judgments

A proviso inserted into a section to remedy unintended consequences, make the section workable, or supply an obvious omission must be read retrospectively in operation to give effect to the section as a whole.

CIT v. Gujarat State Road Transport Corporation

366 ITR 170 · 2014 · High Court

1,158

citing judgments

Employees' contributions to welfare funds, such as provident fund, are not allowable as a deduction under section 36(1)(va) if deposited beyond the due date prescribed under the respective welfare statutes, even by a single day. Such delayed deposits are not cured even if made before the income-tax return filing due date.

279 ITR 331/149 Taxman 15 (Guj.); 5. CIT v. Sabari Enterprises

298 ITR 141 · 2008 · High Court

706

citing judgments

Employee contributions to provident fund or ESI, even if deposited after the due date specified in the respective welfare statutes, are allowable as a deduction under Section 36(1)(va) if paid before the due date for filing the income-tax return. This judgment aligns the treatment of employee contributions with employer contributions under Section 43B.

(i) CIT v. Merchem Ltd.

378 ITR 443 · 2015 · High Court

631

citing judgments

Belated remittance of employees' contribution to ESI and PF, even if deposited before the due date for filing the return of income under Section 139(1), is not allowed as a deduction. This disallowance falls under Section 36(1)(va) read with Section 2(24)(x), as Section 43B applies only to employer's contributions.

CIT v. Ghatge Patil Transports Ltd.

368 ITR 749 · 2014 · High Court

609

citing judgments

Deduction for employees' contributions to PF and ESIC is allowable under Section 43B if paid before the due date for filing the return under Section 139(1); similarly, delayed deposits of employers' contributions to ESIC and PF are also allowable.

CIT v. Gujarat State Road Transport Corpn

41 Taxmann.com 100 · 2014 · High Court

540

citing judgments

Employees' contributions to provident fund or other welfare funds are deductible under section 36(1)(va) only if paid by the due date specified in the respective welfare fund enactments, and section 43B does not extend this period to the income tax return filing due date under section 139(1).

Judgments citing Section 36(1)(va)

M/S. Shabari Enterprises, Bangalore vs. Deputy Commissioner of Income Tax, Circle-4(2)(1), Bangalore

In the result, the appeals filed by the assessee are allowed

ITA 482/BANG/2021[2019-20]Status: HeardITAT Bangalore06 Jan 2022AY 2019-20

Bench: Shri George George K, Jm & Shri B.R.Baskaran, Am

For Appellant: Sri.Ashwin D.Rao, CAFor Respondent: Smt.Priyadarshini Besaganni, JCIT-DR

Section 139(1)Section 143(1)Section 143(1)(a)Section 36(1)(va)Section 43B

delayed deposits of employees’ contribution to PF and ESI funds, by relying on the 2 ITA No.481-482/Bang/2021. M/s.Shabari Enterprises. explanations inserted to section 36(1)(va) and 43B by the Finance Act, 2021, which are prospective in nature. 3. Without prejudice to the above, the ld.AO erred in disallowing ... date of filing of return of income u/s 139(1) of the Act. It was further held that the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and has got retrospective operation. 5. Aggrieved, assessee has filed these appeals before

M/S. Shabari Enterprises, Bangalore vs. Deputy Commissioner of Income Tax, Circle-4(2)(1), Bangalore

In the result, the appeals filed by the assessee are allowed

ITA 481/BANG/2021[2018-19]Status: HeardITAT Bangalore06 Jan 2022AY 2018-19

Bench: Shri George George K, Jm & Shri B.R.Baskaran, Am

For Appellant: Sri.Ashwin D.Rao, CAFor Respondent: Smt.Priyadarshini Besaganni, JCIT-DR

Section 139(1)Section 143(1)Section 143(1)(a)Section 36(1)(va)Section 43B

Vidhi Clothing Company, Bengaluru vs. The Deputy Commissioner of Income Tax, CPC, Bangalore

In the result, the appeal of the assessee is allowed

ITA 424/BANG/2021[2019-20]Status: DisposedITAT Bangalore05 Jan 2022AY 2019-20

Bench: Shri Chandra Poojari & Smt. Beena Pillaiassessment Year : 2019-20

For Appellant: Smt. Suman Lunkar, CAFor Respondent: Shri Sankarganesh K, JCIT (DR)

Section 139(1)Section 143Section 143(1)Section 143(1)(a)Section 234ASection 250Section 36(1)(va)Section 43B

jurisdictional High Court to confirm the disallowance despite there being contrary judgments of the jurisdictional High Court. f) Holding that, the amendments to Section 36(1)(va) and Section 43B brought in by Finance Act, 2021 are retrospective, clarificatory and declaratory in nature. And erred in thus confirming the disallowance

Bi Worldwide India Private Limited, Bangalore vs. Income Tax Officer, Ward-2(1)(2), Bangalore

In the result, the appeal filed by the assessee is allowed

ITA 433/BANG/2021[2018-19]Status: DisposedITAT Bangalore04 Jan 2022AY 2018-19

Bench: Shri. B.R. Baskaran & Smt. Beena Pillaiassessment Year : 2018-19

For Appellant: Shri C.R Krishna, CA

Section 139(1)Section 143(1)Section 36Section 36(1)(va)Section 43B

date as mentioned in the respective Acts. The CIT(A) also relied on the Page 3 of 7 amendment brought to section 36(1)(va) by Finance Act, 2021 and 43B of the I.T.Act. 6. Aggrieved by the order of Ld.CIT(A), the assessee filed appeal before the Tribunal ... respondent-revenue. There shall be no order as to costs." Page 5 of 7 7.2 The further question is whether the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent

Senator Travels Private Limited, New Delhi vs. Itd, CPC, Bengalore

In the result, the appeal of the assessee is allowed

ITA 327/DEL/2021[2017-18]Status: DisposedITAT Delhi04 Jan 2022AY 2017-18

Bench: Shri Kul Bharat[Assessment Year : 2017-18] Senator Travels Pvt.Ltd., Vs Itd, 2K, Dcm Building, 16, Cpc, Barakhamba Road, Bengalore. New Delhi-110001. Pan-Aabcs2702B Appellant Respondent Appellant By None Respondent By Sh. Om Prakash, Sr.Dr Date Of Hearing 04.01.2022 Date Of Pronouncement 04.01.2022

Section 143(1)Section 234ASection 28Section 36(1)(va)Section 43B

employees contribution on account of PF & ESI against the assessee by holding that assessee would be entitled to deduction In terms of section 36(1)(va) of the Act to the extent if the employees contribution on account of PF & ESl deposited on or before the due date ... supra) is extracted as under:- "7. The issue here concerns the Interplay of Section 2(24)(x) of the Act read with Section 36(1)(va) of the Act alongside provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (especially Regulation 38 of the Employees' Provident Funds Scheme

Genworks Health Private Limited, Bengaluru vs. Assistant Director of Income Tax, CPC, Bangalore

In the result, the appeal of the assessee is allowed

ITA 469/BANG/2021[2019-20]Status: HeardITAT Bangalore03 Jan 2022AY 2019-20

Bench: Shri Chandra Poojari & Smt. Beena Pillaiassessment Year : 2019-20

For Appellant: Shri K.R Vasudevan, AdvocateFor Respondent: Smt. Priyadarshini Besaganni, JCIT (DR)

Section 139Section 139(1)Section 143(1)Section 2Section 36(1)(va)Section 6

IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL

Active Group Securitas, New Delhi vs. DCIT, CPC, Bengaluru

In the result, both appeals filed by the assessee are allowed

ITA 1287/DEL/2021[2019-20]Status: DisposedITAT Delhi30 Dec 2021AY 2019-20

Bench: Shri Kul Bharat

Section 143(1)Section 143(1)(a)Section 36(1)(va)Section 43B

from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 applies. Explanation 2 to section 36(1)(va) reads as under: Explanation 2.-For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply

Active Group Securitas, New Delhi vs. DCIT, CPC, Bengaluru

In the result, both appeals filed by the assessee are allowed

ITA 1286/DEL/2021[2018-19]Status: DisposedITAT Delhi30 Dec 2021AY 2018-19

Bench: Shri Kul Bharat

Section 143(1)Section 143(1)(a)Section 36(1)(va)Section 43B

Sugandh, Moradabad vs. Itd, CPC, Bengaluru

In the result, the appeal of the assessee is allowed

ITA 1259/DEL/2021[2018-19]Status: DisposedITAT Delhi30 Dec 2021AY 2018-19

Bench: Shri Kul Bharat[Assessment Year : 2018-19] Sugandh, Vs Itd, Jawahar Market, G.M.D.Road, Cpc, Moradabad, Uttar Pradesh-244001. Bengaluru. Pan-Aaefs7109J Appellant Respondent Appellant By None Respondent By Sh. Om Prakash, Sr.Dr Date Of Hearing 30.12.2021 Date Of Pronouncement 30.12.2021

Section 143(1)Section 36(1)(va)Section 43B

This provision does not cover employee contribution referred to in clause (va) of sub- section (1) of section 36 of the Act. 4.6 Section 36(1 )(va) and section 43B(b) operate in different fields, i.e., former takes care of employee's contribution and later the employer's contribution. Therefore ... contributory fund. So far as the employee's contribution is concerned, the assessee is entitled to get deduction of amounts as provided under section 36(1)(va) only if amounts so received from the employee is credited in specified account within due date as provided under relevant statute. This view

Excel Phosphates Private Limited, Meerut vs. ADIT, CPC, Bengaluru

In the result, the appeal of the assessee is allowed

ITA 1258/DEL/2021[2019-20]Status: DisposedITAT Delhi30 Dec 2021AY 2019-20

Bench: Shri Kul Bharat[Assessment Year : 2019-20] Excel Phosphates Pvt.Ltd., Vs Adit, 195-196, Shatabdi Nagar, Delhi Cpc, Road, Meerut, Uttar Pradesh-250103 Bengaluru. Pan-Aacce3927B Appellant Respondent Appellant By None Respondent By Sh. Om Prakash, Sr.Dr Date Of Hearing 30.12.2021 Date Of Pronouncement 30.12.2021

Section 143(1)Section 36(1)(va)

circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred in facts and in law in holding that the amendment to section 36(1)(va) is with retrospective effect. Ground 4: That on the facts and circumstances of the case, Ld. Commissioner of Income Tax (Appeals) erred

Dinesh Chandra Semwal, New Delhi vs. ITO Ward - 28(1), New Delhi

In the result, the appeal of the assessee is allowed

ITA 21/DEL/2021[2018-19]Status: DisposedITAT Delhi29 Dec 2021AY 2018-19

Bench: Sh. Kul Bharat

Section 139(1)Section 143(1)Section 36(1)(va)Section 43B

employers contribution is governed by Section 43B whereas allowability under the Income tax Act related to employees contribution which is governed by section 36(1 )(va). 6.4 The actual intent of the legislature regarding these provisions is analyzed as under: Before Section 43B, there is a headnote which says ‘‘certain ... well the legislature could have very well added it. Nothing has stopped the legislature from adding employees' contribution into this section. 6.5 Section 36(1)(va) talks about other deduction relating to employees’ contribution. In the section due date has also been explained by an Explanation to section 36(1

M/S. Vijay Samraj Hotels Private Limited, Bangalore vs. The Assistant Commissioner of Income Tax, CPC, Bangalore

In the result, the appeal filed by the assessee is allowed

ITA 504/BANG/2021[2019-20]Status: DisposedITAT Bangalore28 Dec 2021AY 2019-20

Bench: Shri. B.R. Baskaran & Smt. Beena Pillaiassessment Year : 2019-20 M/S. Vijay Samraj Hotels P. The Assistant Ltd., Commissioner Of No. 18, 3Rd Main Road, Income Tax, Gandhinagar, Cpc, Bangalore – 560 009. Bangalore. Vs. Pan: Aabcv4731B Appellant Respondent Shri S.V. Ravishankar, Assessee By : Advocate & Ms. Sunaina Bhatia, Ca : Shri Raghavendra Rao, Addl. Revenue By Cit (Dr) Date Of Hearing : 01-12-2021 Date Of Pronouncement : 28-12-2021 Order Per Beena Pillaipresent Appeal By The Assessee Has Been Filed By Assessee Against The Order Dated 30.07.2021 Passed By The National Faceless Appeal Centre (Nfac), Delhi Relating To Assessment Year 2019-20 On Following Grounds Of Appeal: “1. The Impugned Order Of The Learned Commissioner Of Income-Tax (Appeals) National Faceless Appeal Centre, Bengaluru Karnataka Passed Under Section 250 Of The Income Tax Act, 1961 Is Opposed To Law, Weight Of Evidence, Probabilities, Facts & Circumstances Of The Appellant'S Case.

For Appellant: Advocate & Ms. Sunaina

Section 139(1)Section 143(1)Section 250Section 36(1)(va)Section 43B

Income Tax (Appeals) is not justified in upholding the addition made by the learned Assessing Officer of Rs. 6,10,738/- under section 36(1)(va) on the facts and circumstances of the case. 4. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the no addition under ... section 36(1)(va) of the Act could be made in an intimation under Section 143(1) of the Act and the same is without jurisdiction on facts and circumstances of the case of the appellant. 5. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the Explanation

Abhay Shrivastva, Faridabad vs. DCIT, CPC, Bengalurur

In the result, the appeal of the assessee is allowed

ITA 1289/DEL/2021[2018-19]Status: DisposedITAT Delhi28 Dec 2021AY 2018-19

Bench: Shri Kul Bharat[Assessment Year : 2018-19] Abhay Shrivastva, Vs Dcit, 501, Sears Vth Floor, Sector-86, Cpc, Faridabad, Haryana-121007. Bengaluru. Pan-Bgjps08499B Appellant Respondent Appellant By Sh. Gurjit Singh, Ca Respondent By Sh. Om Prakash, Sr.Dr Date Of Hearing 28.12.2021 Date Of Pronouncement 28.12.2021

Section 143Section 143(1)Section 143(1)(a)Section 36(1)(va)

deduction towards employees' contribution of PF/ESI in the hands of the employer u/s.36 are very clear. When it is specifically covered under section 36(1 )(va), it cannot be considered under any other provisions of the Act including section 37 or section 43B, as evident from the following ... therein that this Circular does not apply to claim of deduction relating to employee's contribution to welfare funds which are governed by section 36(1)(va) of the IT Act. 4.2.17 The result of any failure to pay within the prescribed dates also leads to different results

Shand Pipe Industry Private Limited, Bengaluru vs. The Deputy Commissioner of Income Tax (CPC), Bengaluru

In the result, the appeal of the assessee is allowed

ITA 412/BANG/2021[2018-19]Status: DisposedITAT Bangalore27 Dec 2021AY 2018-19

Bench: Shri Chandra Poojari & Shri George George Kassessment Year : 2018-19

For Appellant: Smt. Suman Lunkar, C.AFor Respondent: Shri H Ananda, Addl.CIT (DR)

Section 139(1)Section 143Section 143(1)Section 143(1)(a)Section 234BSection 250Section 36Section 36(1)(va)Section 43B

IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K

Devender Yadav, Gurgaon vs. Itd, CPC, Bengaluru

In the result the appeal of the assessee is allowed

ITA 1100/DEL/2021[2018-19]Status: DisposedITAT Delhi23 Dec 2021AY 2018-19

Bench: Shri Saktijit Deyasstt. Year: 2018-19

For Appellant: Shri Manoj Garg, CAFor Respondent: Shri Om Prakash, Sr. DR

Section 139Section 139(1)Section 36(1)(va)Section 43B

made amounting to Rs. 21,56,580/-, assessee preferred an appeal before learned Commissioner (Appeals). However, referring to the amendment made to section 36(1)(va) by Finance Act 2021 w.e.f. 1.4.2021 and the corresponding amendment made to section 43B by inserting Explanation 5, learned Commissioner (Appeals) held that ... provided under the relevant statutory provisions. Thus, he upheld the disallowance. 4. Learned Counsel appearing for the assessee submitted, the amendment to section 36(1)(va) and section 43B made by the Finance Act 2021 being effective from 1.4.2021, would apply prospectively from assessment year 2021-22 and subsequent assessment

Mr. Yeruva Prasad, Bengaluru vs. The Assistant Commissioner of Income Tax, CPC, Bengaluru

In the result, the appeals filed by the assessee are allowed

ITA 589/BANG/2021[2019-20]Status: DisposedITAT Bangalore22 Dec 2021AY 2019-20

Bench: Shri George George K, Jm & Shri B.R.Baskaran, Am

For Appellant: Sri.Kusuma Yatish, CAFor Respondent: Smt.Priyadarshini Besaganni, JCIT-DR

Section 139(1)Section 143(1)Section 36(1)(va)Section 43B

binding precedent issued by Jurisdictional High Court. d)The Ld. CIT(A) erred in not appreciating that the provisions of Section 43B overrides Section 36(1)(va) and that disallowance under Section 36(1)(va) was applicable only if the said contributions are not remitted within the due date ... ld.CIT(A) erred in not considering the factual backdrop that the legislature has not only incorporated necessary amendments in Section 36(1)(va) as well as 43B made vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f

Mr. Yeruva Prasad, Bengaluru vs. The Assistant Commissioner of Income Tax, CPC, Bengaluru

In the result, the appeals filed by the assessee are allowed

ITA 588/BANG/2021[2018-19]Status: DisposedITAT Bangalore22 Dec 2021AY 2018-19

Bench: Shri George George K, Jm & Shri B.R.Baskaran, Am

For Appellant: Sri.Kusuma Yatish, CAFor Respondent: Smt.Priyadarshini Besaganni, JCIT-DR

Section 139(1)Section 143(1)Section 36(1)(va)Section 43B

Bizviz Technologies Private Limited, Bangalore vs. Deputy Commissioner of Income Tax, CPC, Bangalore

In the result, the appeal filed by the assessee is allowed

ITA 587/BANG/2021[2018-19]Status: HeardITAT Bangalore22 Dec 2021AY 2018-19

Bench: Shri George George K, Jm & Shri B.R.Baskaran, Am

For Appellant: Sri.Sharwan Kumar GuptaFor Respondent: Capt.Pradeep Shoury Arya, Addl.CIT-DR

Section 139(1)Section 143(1)Section 234ASection 36Section 36(1)(va)Section 43B

date of filing of return of income u/s 139(1) of the Act. It was further held that the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and has got retrospective operation. 5. Aggrieved, assessee has filed this appeal before ... return of income u/s 139(1) of the I.T.Act. It was further held by the ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. The relevant finding of the ITAT in the case of M/s. Shakuntala Agarbathi Company

M/S Robert Bosch Engineering and Business Solutions Private Limited, Bangalore vs. The Deputy Commissioner of Income Tax Ltu, Bangalore

In the result, the appeal filed by the assessee is allowed

ITA 1637/BANG/2018[2011-12]Status: HeardITAT Bangalore22 Dec 2021AY 2011-12

Bench: Shri George George K, Jm & Shri B.R.Baskaran, Am

For Appellant: Sri.Anand Sondur, CAFor Respondent: Smt.Priyadarshini Besaganni. JCIT-DR

Section 1Section 143(3)Section 154Section 263Section 3Section 36(1)(va)

assessee submits that such amount should be allowed as deduction for the purpose of computation of income of the assessee as envisaged under section 36(1)(va) of the Act.” 5. In this context, the assessee stated that it amounts actual of write off of debts and relied

Volantis Technologies Private Limited, Bangalore vs. Deputy Commissioner of Income Tax, CPC, Bangalore

In the result, appeal of the assessee is allowed

ITA 617/BANG/2021[2019-20]Status: DisposedITAT Bangalore21 Dec 2021AY 2019-20

Bench: Shri N.V. Vasudevanassessment Year : 2019-20 M/S. Volantis Technologies Private Limited, Vs. Dcit, 940, 2Nd Floor, 16Th Main, Btm 2Nd Stage, Central Processing Centre, Bengaluru – 560 076. Bengaluru. Pan : Aaccv 1855 F Assessee By : None Revenue By : Shri. Ganesh R. Ghale, Standing Counsel For The Department Date Of Hearing : 21.12.2021 Date Of Pronouncement : 21.12.2021 O R D E R Er N. V. Vasudevanthis Is An Appeal Filed By The Assessee Against Order Dated 02.08.2021 Of Cit(A) National Faceless Appeal Centre (Nfac), Delhi, Relating To Assessment Year 2019-20. 2. The Assessee Is A Private Limited Company. The Assessee Filed Return Of Income For Ay 2019-20 Declaring Total Income Of Rs.36,25,384/-. In An Intimation Dated 16.06.2021 Issued U/S.143(1) Of The Act, The Centralized Processing Centre (Cpc) Added A Sum Of Rs.9,11,370/- Representing Employees’ Share Of Contribution To Esi To The Extent Not Paid On Or Before The Due Date As Mentioned In Sec 36(1)(Va) Of The Income Tax Act 1961. 3. It Was The Case Of The Assessee That Employees’ Share Of Esi Has Been Paid Before The Due Date For Filing Of Return U/S.139(1) Of The Act (This Fact Is Not In Dispute) & Hence Has Been Considered Allowable On The Basis Of Decision Of Supreme Court In Cit Vs. Alom Extrusions Ltd (2009) 319 Itr Page 2 Of 6

For Appellant: NoneFor Respondent: Shri. Ganesh R. Ghale, Standing Counsel for the Department

Section 139Section 139(1)Section 143(1)Section 2Section 28Section 36Section 36(1)(va)Section 43B

With regard to employee’s share of contribution to PF and ESI, the CIT(A) referred to the amendment made to section 36(1)(va) and 43B of the Act by the Finance Act, 2021. The Finance Act, 2021 has amended section 36, sub-section (1), in clause (va ... which the provisions of subclause (x) of clause (24) of section 2 applies. 5. The CIT(A) was of the view that Section 36(1)(va) and section 43B(b) operate on totally different footings and have different parameters for due dates, i.e., employee's contribution is linked to payment