2022 (6) TMI 1548 - AT - Income Tax

Employees' PF/ESI contributions paid late under welfare laws but before s.139(1) return deadline allowed as deduction

The dominant issue was whether employees' PF/ESI contributions paid after the due dates under the respective welfare statutes but before the due date for ... Addition u/s.43B - delayed payment of employees’ contribution deposited by employer with the EPF and ESIC authorities beyond the due date specified under the relevant laws but before the due date for filing the return of income u/s 139 of the Act - HELD THAT:- As in the case of Essae Teraoka Pvt. Ltd., [2014 (3) TMI 386 - KARNATAKA HIGH COURT] has taken the view that employee’s contribution u/s 36(1)(va) of the Act would also be covered u/s 43B of the Act and therefore if the share of the employee’s share of contribution is made on or before due date for furnishing the return of income u/s 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon’ble Karnataka High Court. In this case there is no dispute that the assessee made payment of the Employees share of PF/ESI on or before the due date for filing return of income for AY 2017-18 u/s.139(1) of the Act. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also. On this aspect, we find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made u/s 36(1)(va) of the Act, deserves to be deleted. Rectification application u/s 154 was rejected - His submission was that the issue was debatable and therefore the proceedings u/s 154 would not be appropriate - the issue is squarely covered by decision of M/s. Essae Teraoko Pvt. Ltd.,[2014 (3) TMI 386 - KARNATAKA HIGH COURT] it cannot be said that the issue was debatable. Hence, this argument of the learned DR is not acceptable. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether employees' contribution to EPF/ESIC, deposited after the due dates under the respective welfare laws but before the due date for filing the return under section 139(1), is allowable as deduction; and whether additions made on this ground were sustainable. (ii) Whether the Finance Act, 2021 amendments inserting Explanation 2 to section 36(1)(va) and Explanation 5 to section 43B are retrospective so as to govern assessment years prior to 01.04.2021. (iii) Whether the issue of such deduction could be treated as 'debatable' so as to justify rejection of relief on that basis (in the context of rectification-related objection raised by the Revenue). 2. ISSUE-WISE DETAILED ANALYSIS (i) Deductibility where employees' EPF/ESIC contributions are paid before the return-filing due date but after statutory due dates Legal framework (as considered by the Court): The Court considered the interaction between section 36(1)(va) (employees' contribution) and section 43B (allowability on payment basis up to the return-filing due date), as examined in the binding jurisdictional precedent relied upon by the Court. Interpretation and reasoning: The Court applied the jurisdictional High Court view that employees' contribution under section 36(1)(va) is covered by section 43B; therefore, payment made on or before the due date for filing the return under section 139(1) entitles the assessee to deduction. The Court recorded that there was no dispute on facts that the payments were made before the section 139(1) due date. Conclusion: The additions disallowing employees' contribution merely because payment was beyond the due dates under the respective EPF/ESIC laws, despite payment before the return-filing due date, were not sustainable and were directed to be deleted. (ii) Retrospectivity of the Finance Act, 2021 amendments to sections 36(1)(va) and 43B Legal framework (as considered by the Court): The Court examined the Finance Act, 2021 insertion of Explanation 2 to section 36(1)(va) and Explanation 5 to section 43B, and considered the stated applicability in the explanatory memorandum referred to in the order. Interpretation and reasoning: The Court held that, as per the explanatory memorandum, the amendments were applicable only from 01.04.2021. It further reasoned that the amendments impose a liability on the assessee and therefore cannot be construed as retrospective unless the legislature specifically provides so. Consistent with the tribunal decisions noted on identical issues, the Court accepted the amendments as prospective. Conclusion: The Finance Act, 2021 amendments were held to operate prospectively from 01.04.2021 and could not be applied to disallow deductions for years prior to that date; consequently, the impugned disallowances were deleted. (iii) Whether the issue was 'debatable' so as to deny relief on that ground Legal framework (as considered by the Court): The Court addressed the Revenue's contention that the matter was debatable and therefore unsuitable for rectification-type relief, and evaluated that contention in light of binding jurisdictional precedent. Interpretation and reasoning: The Court held that, since the issue was squarely covered by the jurisdictional High Court decision applied by the Court, it could not be treated as debatable. Accordingly, the objection premised on 'debatability' was rejected. Conclusion: The Revenue's argument that the matter was debatable was not accepted; relief could not be denied on that basis.