TaxTMI 
TaxTMI 
2021 (10) TMI 842
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....d return u/s 139(9) of the Act vide acknowledgment No.646189280120618 on 12/6/2018 declaring total income of Rs. 3,04,48,410/-. The return was processed by CPC u/s 143(1) of the Act adding an amount of Rs. 19,04,701/- for the reason of delay in payment of employees' contribution of PF u/s 36(1)(va) of the Income-tax Act. The assessee filed petition u/s 154 of the Act to correct the same on 15/5/2019. However the same was dismissed by the AO vide order dated 19/2/2019. Again the assessee filed an appeal before CIT(A). The CIT(A) confirmed the order of the AO. 5. Against this assessee is in appeal before us. 6. We have heard both the parties and perused the material on record. The assessee made contribution to the PF as follows:- 7. As seen from the above, the assessee made a sum of Rs. 19,04,700/- beyond the time prescribed under the relevant Act. Now the claim of assessee is that the above payment has been made towards PF beyond due date prescribed under the relevant Act, however, the same was made within due date of filing the return of income u/s 139(1) of the Act for the year under consideration. As such the said amount cannot be disallowed u/s 36(1)(va) of the Act and ....
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.... contribution payable by the employer. 18. Paragraph-30 of the PF Scheme provides for payment of contributions. Sub-para (1) of paragraph- 30 states that the employer shall, in the first instance, pay both the contribution payable by himself (in this Scheme referred to as the employer's contribution) and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member (in this Scheme referred to as the member's contribution). 19. From bare perusal of sub-para (1) of paragraph-30, it is clear that the word "contribution" is used not only to mean contribution of the employer but also contribution to be made on behalf of the member employed by the employer directly. 2O. Paragraph-38 of the PF Scheme provides for Mode of payment f contributions. As provided in sub-para (1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act within fifteen days of the closure of every month pay. It is clear that the w....
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....rst proviso of the said section which was inserted by the Finance Act, 1987, which came into effect from April 1, 1988, the letters numbered as clause (a), or clause (c) or clause (d) or clause (e) or clause (f) are omitted from the above proviso and therefore deduction towards the employees contribution paid can be claimed by the assessee. The Explanation to clause (va) of section 36(1) of the Income-tax Act further makes it very clear that the amount actually paid by the assessee on or before the due date applicable in this case at the time of submitting returns of income under section 139 of the Act to the Revenue in respect of the previous year can be claimed by the assessees for deduction out of their gross income. The above said statutory provisions of the Income-tax Act abundantly makes it clear that, the contention urged on behalf of the Revenue that deduction from out of gross income for payment of tax at the time of submission of returns under section 139 is permissible only if the statutory liability of payment of provident fund or other contribution funds referred to in clause (b) are paid within the due date under the respective statutory enactments by the assessees as....
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....ower Distribution Company of A.P. Ltd. [2016] 160 lTD 432 (Visakhapatnam - Trib.) 14. Nuzivedu Swati Coastal Consortium vs. ITO [2015] 62 taxmann.com 258 (Hyderabad - Trib.) 15. DCIT vs. Teesta Valley Tea Co. Ltd. [2017] 85 taxmann.com 301 (Kolkata - Trib.) 11. The ld.DR contention is that as per sec.43B(b) of the Income-tax Act and explanatory notes to Finance Act 1983, that Employees' Contribution was never intended to be covered by sec.43B. This has been reiterated and reinforced through Explanation 5 to sec.43B and Explanation 2 to 36(1)(va) inserted by Finance Act 2021. If it was the intention of the legislature expressly made clear in the Finance Act 2021, through the explanatory notes, it would necessarily to be held that Explanation 5 to sec. 43B and Explanation 2 to sec.36(1)(va) would apply to all pending matters as on date. 12. We find no merit in the argument of the ld. DR since the explanation as provided in Finance Act 2021 prescribes that the amendment in both sec.36(va) as well as 43B by inserting corresponding explanation that although impugned PF comes in the form of provision and the same is applicable from 1/4/2021 onwards only. In the pr....
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....d on facts in not appreciating the facts that the impugned amount has been remitted before the due date of filing of return of income under section 139(1) of the Act; 10. The Learned CIT(A) and AO ought to have appreciated that even the employees' contribution stands on par with the employees' contribution; hence such amounts paid before the due date for filing the return of income are allowable as deduction; 11. The Learned CIT(A) has erred in law and on facts in holding that the amendments made in the Finance Act, 2021 are retrospective in nature; 12. The Learned CIT(A) and AO has further erred in law and on facts in not providing interest under section 244A of the Act on the impugned amount; On the basis of above grounds and other grounds which may be urged at the time of hearing with the consent of the Honorable Tribunal, it is prayed that the order passed under section 154 of Act be quashed and relief sought be granted. Document 3 20 b Details of contributions received from employees for various funds as referred to in section 36(1)(va): S.No. Nature of fund Sum received from employees Due date for The actual ....