TaxTMI 
TaxTMI 
2022 (3) TMI 1344
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....u/s 2(24)9x) r.w.s 36(1)(va) of the I.T. Act, 1961. Even otherwise, the claim of the assessee is allowable u/s 36(1)(va) r.w.s 43B of the I.T. Act, 1961, in view of binding decision of the Hon'ble jurisdictional Rajasthan High Court in the cases of CIT vs. State Bank of Bikaner and Jaipur reported in 2014 363 ITR 70 Rajasthan, CIT vs. Udaipur Dugdh Utpadak Sahkari Sangh Limited reported in 2014 366 ITR 163 Rajasthan, which may kindly be allowed. 3. That the ld. CIT(A), NFAC, Delhi has erred in law and on facts in holding that the amendments made in the Finance Act, 2021 are retrospective in nature. 4. That the ld. CIT(A), NFAC, Delhi as well ld. AO has erred on facts and in law not provided last opportunity to the appellant to explain its case and passed the assessment order in jury. Therefore, principal of natural justice violated. 5. That the appellant craves his right to add, annul, amend, alter, withdraw and/or substitute any/ or all of the grounds of appeal before the finalization of the appeal." 3. Brief facts of the case are that the assessee is an individual and is proprietor of M/s Amit Travels engaged in providing taxi hire service business. The assessee has filed ....
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.... November 25, 2009 Commissioner of Income Tax vs. M/s Alom Extrusions Limited 12. Hon'ble Supreme Court [1997] 224 ITR 677 (SC) March 10, 1997 Allied Motors Private Limited vs. Commissioner of Income-Tax 13. SC order [2009] 313 ITR 1 March 7, 2007 CIT vs. Vinay Cement Ltd. 14 SC order: July 4, 2017 Principal Commissioner of Income Tax, Jaipur vs. M/s Rajasthan State ;beverages Corpn. Ltd. 15. Hon'ble Supreme Court of Incie:[ 2009] 313 ITR (St.) 1: March 7, 2007 CIT vs. Vinay Cement Ltd. (16) Gauhati High Court [2006] 284 ITR 619: June 26, 2006 Commissioner of Income Tax vs. George Williamson (Assam) Limited. 17. Allahabad High Court: December 21, 2016 Sagun Goundry Private Limited vs. Commissioner of Income Tax, Kanpur 18. Patna High Court: [2017} 393 ITR 386 March 16, 2016 M/s Bihar State warehousing Corporation Ltd. vs. Commissioner of Income Tax-1, 19. DY Commissioner of Income Tax (19) Patna High Court : March 341. 2015 COMMISSIONER OF INCOME TAX-1, PATNA, ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-II, PATNA VERSUS ALKEN LABORATORIES LTD, EXHIBITION ROAD, PATNA 20. PUNJAB AND HARYANA. HIGH COURT September 21, 2015 COMMISSIONER OF INCOME TAX, FARIDABAD VERSUS ....
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....he case of Dhabriya Polywood Ltd. vs. ADIT, CPC, Bengaluru 133 taxmann.com 135 (Jaipur- Trib.) held as under:- "Admittedly and undisputedly, the employee's contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, it is noted that the ld CIT(A) has referred to the explanation to section 36(1)(va) and section 43B introduced by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance bill, 2021, however, he has simply failed to consider the express wordings in the said memorandum which say "these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years". The impugned assessment year is assessment year 2019-20 and therefore, the said amendment cannot be applied in the instant case." 10. The reliance was also placed on the decisions of the ITAT Jaipur Bench in the following cases:- * Moona Dewan vs. CPC, Bengalure in ITA No. 282/JP/2021 dated 19.01.2022 (Jaipur-Trib.) * M/s Punjab Engineering Works vs. DCIT in ITA No.....
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....on that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon'ble High Court will apply and since this Explanation- 5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon'ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon'ble Calcutta High Court has taken note of the Hon'ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon'ble Calcutta High Court's decision in Vijayshree Ltd. supra is reproduced as under: "This appeal is at the instance of the Revenue and is directed against an order dated 28th April, 2011 passed by the Income Tax Appellate Tribunal, "A" Bench, Kolkata in ITA No.1091/Kol/2010 relating to assessment year 2006- 07 by which the Tribunal dismissed the appeal preferred by the Revenue against the order of CIT(A). The only issue involved in this appeal is as to whether the deletion of the addition by the AO on account of Employees Contribution to ESI and PF by invoking the provision of Section 36(1)(va) read with Se....
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....d necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, I hold that the impugned disallowance is not sustainable in view of all these latest developments even if the Revenue's case is supported by the following case law. (i) CIT vs. Merchem Ltd, [2015] 378 ITR 443(Ker) (ii) CIT vs. Gujarat State Road Transport Corporation (2014) 366 ITR 170 (Guj.) (iii) CIT vs. South India Corporation Ltd. (2000) 242 ITR 114 (Ker) (iv) CIT vs. GTN Textiles Ltd. (2004) 269 ITR 282 (Ker) (v) CIT vs. Jairam & Sons [2004] 269 ITR 285 (Ker) The impugned ESI/PF disallowance is directed to be deleted therefore." 10. On an identical issue, this Bench of the Tribunal vide order dated 12.8.2021 in the case of Mohangarh Engineers and Construction Co....
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....he case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause & would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under Section 139 is....
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....ppellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 4,38,530/- so made by the CPC towards the delayed deposit of the employees's contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon'ble Rajasthan High Court. " 11. Since the facts of the present cases are identical to the facts involved in the aforesaid referred to cases, therefore respectfully following the earlier orders as referred to herein above of the different Benches of the ITAT, the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment m....
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....B of the Act. 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 ought to have been applied for the purpose of determining the due date under this clause. In our opinion, this amendment has been brought in the statute book to provide certainty about the applicability of provisions of Section 43B of the Act inspite of belated payment of employee's contribution. We also noted from the memorandum explaining the provisions to Finance Act, 2021, wherein relevant Clauses to 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 clau....
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....tressed 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 f....
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.... under section 139(1) of the Act, no disallowance can be made under section 43B of the Act. 5. It is clarified 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. 6.2 The ITAT, Ahmedabad in case of Morakhia Copper and Alloys (P.) [2020] 119 taxmann.com 214 (Ahmedabad - Trjb.) has held as under : "11. We have heard the rival contentions and perused the materials available on record. The issue arises before us whether the payment of employee contribution made by the assessee towards ESI are within the due date as specified under the relevant Act. In this regard, we note that the assessee has made the payment of employees contribution beyond the due date as specified under the relevant Act. Therefore, the same cannot be allowed as deduction. We also note that the identical issue has been decided vide order dated 15th Oct, 2018 by the Hon'ble Gujarat High Court in the case of M/s Checkmate Facility and 'Electronics Solutions Pvt. Ltd. v. DCIT reported in Tax Appeal No. 1256 of 2018 against the assessee. The head note reads as under: "Disallowance u/s 2(24)(....
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....yees contribution) - Whether where an employer has not Credited sum received by it as employees' contribution to employees' account in relevant fund on or before due date as prescribed in Explanation to section 36(1)(va), assessee shall not be entitled to deduction of such amount though he deposits same before due date prescribed under section 43B i.e., prior to filing of return under section 139(1) - Held, yes - Assessee State transport corporation collected a sum being provident fund contribution from its employees - However, it had *deposited lesser sum in provident fund- account Assessing Officer disallowed same under section 43B - However, Commissioner (Appeals) deleted disallowance on ground that employees contribution was deposited before filing return - Whether since assessee had not deposited said contribution in respective fund account on date as prescribed in Explanation to section 36(1)(va), disallowance made by Assessing Officer was just and proper 'Held, yes [Para 8] [In favour of revenue]" 6.5 The head note of decision of High Court of Madras in case of Unifac Management ServiCes (India) Pvt. Ltd. [2018] 100 taxmann.com 244 (Madras) is as under : "Sec....
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.... the Income-tax Act, 1961 - Employee's contributions (Allowability of deduction) - Assessment year 2013- 14 - Whether where assessee employer failed to deposit entire amount towards employees contribution on account of PF and ESI with concerned department on or before due date prescribed under relevant statutes; assessee would not be entitled to deduction under section 36(1)(va) - Held, yes [Paras 5, 9, 11. and 12] [In favour of revenue]" 6.7 The same view i.e. the assessee is entitled to deduction in respect of employees' contribution to ESI and EPF as provided under section 36(1)(va) only if same is paid within due date as specified under relevant statutes was held in the following decisions: a) The High Court of Kerala in case of Popular Vehicles & Services (P.) Ltd. [2018] 96 taxmann.com 13 (Kerala) b) The High Court of Gujarat in case of Suzlon Energy Ltd. [2020] 115 taxmann.corn 340 (Gujarat) 6.8 This is also to pertinent to note that a clarificatory amendment was brought in by the Finance Act 2021 by adding explanation 2 in Section 36(1)(va) and explanation 5 to section 43B. The* language of these explanations clearly 'Suggest that the amendment is retros....
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.... this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 applies. 6.9 The ITAT, Delhi [ F-Bench] in case of Vedvan Consultants Pvt. Ltd. vs. DCIT, CPC [ ITA No. 1312/De1/2020 dated 26.08.2021] has held as under: " 12. The language of newly proposed explanation 2 to section 36(1)(va) and explanation 5 to section 43B makes it clear that the amendment is retrospective." 6.10 The Explanations inserted now in section 36(1)(va) or section 43B by Finance Act 2021 was not considered in any of the decisions cited by the appellant . 6.11 In view of aforesaid discussions, it is held that the AO has correctly disallowed a sum of Rs. 86,905/- being employees contribution to PF / ESI as the appellant failed to deposit the same within due dates specified in the respective Acts by invoking provisions of section 36(1)(va) nw.s. 2(24)(x) and provisions of section 43B are not applicable to the employees contribution to PF/ESI. To conclude, all the grounds of appeal are dismissed: 7. Accordingly, the appeal is treated as Dismissed." 17. After ....
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.... Finance Act specifically making those amendments retrospectively. For example, clause 40 seeks to amend S.92F. Clause iii (a) of S.92F is amended "so as to clarify that the activities mentioned in the said clause include the carrying out of any work in pursuance of a contract." This amendment takes effect retrospectively from 01.04.2002. Various other amendments also take place retrospectively. The Notes on Clauses show that the legislature is fully aware of 3 concepts: (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. Thus, it was a conscious decision of the legislature, even when the legislature knew the implication thereof and took note of the reasons which led to the insertion of the proviso, that the amendment is to operate prospectively. Learned counsel appearing for the assessees sagaciously contrasted the aforesaid stipulation while effecting amendment in Section 113 of the Act, with various other provisions not only in the same Finance Act but Finance Acts pertaining to other years where the legislature specifically prov....