TaxTMI 
TaxTMI 
2022 (2) TMI 1224
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....1, 1479/Del/2021, 1396/Del/2021, 1391/Del/2021, 1320/Del/2021, 1208/Del/2021, 895/Del/2021, 1487/Del/2021, 1490/Del/2021, 1520/Del/2021 1538/Del/2021, 1624/Del/2021, 1631/Del/2021, 1644/Del/2021, 1651/Del/2021, 1701/Del/2021, 1702/Del/2021, 1202/Del/2021, 1288/Del/2021, 1291/Del/2021, 1388/Del/2021, 1420/Del/2021, 1433/Del/2021, 1445/Del/2021 1485/Del/2021, 1486/Del/2021, 1900/Del/2021, 1899/Del/2021, 1896/Del/2021, 1917/Del/2021, 1982/Del/2021, 1994/Del/2021 2017/Del/2021, 2024/Del/2021, 1918/Del/2021, 1935/Del/2021, 1954/Del/2021, 1979/Del/2021, 1712/Del/2021, 1714/Del/2021, 1717/Del/2021 1722/Del/2021, 1723/Del/2021, 1724/Del/2021, 1758/Del/2021, 1770/Del/2021, 1771/Del/2021 1825/Del/2021, 1517/Del/2021, 1542/Del/2021, 1666/Del/2021, 1665/Del/2021, 1695/Del/2021, 1696/Del/2021, 1729/Del/2021, 1732/Del/2021 1745/Del/2021, 1755/Del/2021, 1761/Del/2021, 1999/Del/2021 Sh. Saktijit Dey, Judicial Member and Dr. B. R. R. Kumar, Accountant Member Revenue by : Shri Umesh Takyar, Sr. DR ORDER Per Dr. B. R. R. Kumar, Accountant Member: All these appeals deals with the issue of allowability of contribution received from Employees towards ESI and EPF. 2. The solitary ground....
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....Shipping & Logistics (India) (P.) Ltd. Vs AGIT in ITA No. 324/Del/2017 order dated 25.07.2019 wherein the issue has been ruled against the assessee based on the judgments of Hon'ble High Court of Delhi in the case of CIT Vs. Bharat Hotels Ltd. 410 ITR 417. • Order of ITAT, Delhi in the case of Vedvan Consultants Pvt. Ltd. Vs. DCIT in ITA No. 1312/Del/2020 dated 26.08.2021 wherein the issue has been ruled against the assessee based on the judgments of Hon'ble Madras High Court, Hon'ble Bombay High Court and Hon'ble Kerala High Court. The said orders are examined which are as under: MADRAS HIGH COURT : October 23, 2018 M/S. UNIFAC MANAGEMENT SERVICES (INDIA) PRIVATE LTD. VERSUS THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATION CIRCLE 3 (2) , CHENNAI The scope of Section 43B and Section 36(1)(va) are different and thus, there is no question of reading both provisions together to consider as to whether the assessee is entitled to deduction in respect of the sum belatedly paid towards such contribution, especially when such sum is, admittedly, a sum received by the assessee/employer from his employee. Therefore, for considering such question, app....
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....prescribed ¡n 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 employee's 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 as just and proper." 9. Similarly, the judgments of Hon'ble High Court of Delhi in the case of CIT Vs. Bharat Hotels Ltd. 410 ITR 417 held that the amounts were not allowable u/s 36(1)(va). The relevant portion is 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 Miscellane....
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....venue's appeal is partly allowed. The AO ¡s directed to examine the contributions made with reference to the dates when they were actually made and grant relief to such of them which qualified for such relief in terms of the prevailing provisions and notifications. We also clarify that the assessee would be entitled to deduction in terms of Section 36(1)(va) of the Act." 10. We have also examined the decision of the Hon'ble Allahabad High Court in the case of Sagun Foundry Pvt. Ltd. Vs CIT 145 DTR 265 wherein it was held that as the payments have been made before the due date specified u/s 139(1) and as such are fully allowable. The Hon'ble High Court of Allahabad has considered the case of Gujarat State Road Transport Corporation and held as under: "17. We find that with respect to employees contribution to Provident Fund, as to whether disallowable or not with reference to Section 36(1)(va) read with Section 43B, a similar question came up for consideration before Gujarat High Court in Commissioner of Income-Tax v. Gujarat State Road Transport Corporation, (2014) 366 ITR 170. Therein Assessee collected Rs. 51,06,02,712/- from its employees towards providen....
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....ny sum received by Assessee (employer) from his employee to which Section 2(24)(x) apply, if such sum is credited by Assessee to employees accounts ¡n the relevant fund before due date i.e. date prescribed in the relevant statute applicable to the concerned fund. Court also noticed that Section 43B is ¡n respect to certain deductions and applies only on actual payment. It held that amendment was made by deletion of Second Proviso of Section 43B only, but no corresponding amendment was made under Section 36(1)(va). It said: "It is required to be noted that as such there is no amendment in Section 36(1)(va) and even the Explanation to Section 36(1) (va) is not deleted and is still on the statute and is required to be complied with. Merely because with respect to the employers contribution the second proviso to Section 438 which provided that even with respect to the employers contribution (Section 43B(b)), the Assessee was required to credit the amount in the relevant fund under the PF Act or any other fund for the welfare of the employees on or before the due date under the relevant Act, is deleted, it cannot be said that Section 36(1)(va) has been deleted and/or amended....
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....g Officers order and that is how matter came to Karnataka High Court. The question up for consideration was, "whether Tribunal was justified in affirming finding of Assessing Officer and denying Assessees claim of deduction of employees contribution to PF/ESI alleging that the payment was not made by appellant in accordance with the provisions of Section 36(1)(va) of Act 1961." The Assessees counsel relied on earlier judgment of Karnataka High Court in Commissioner of Income-Tax v. Spectrum Consultants P. Ltd., (2014) 2 ITROL 622 while counsel for Revenue attempted to pursue to take a different view following decision of Gujarat High Court. The Division Bench judgment delivered by Honble Dilip B. Bhosale, (as his lordship then was) held, if the contribution of employees fund is deposited within due date the Assessee is straightaway entitled for deduction under Section 36(1)(va). However Section 43B provides for certain deductions allowable only on actual payment. It gives an extension to the employer to make payment of contribution to provident fund or any other fund, till due date applicable for furnishing of Return under Section 139(1) of Act 1961, in respect of previous year in ....
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....n respect to employers contribution or is applicable to both contributions, whether by employer or employee. 26. The question, whether benefit under Section 43B, as a result of amendment of Finance Act, 2003, is retrospective or not, came to be considered in Commissioner of Income-Tax v. Alom Extrusions Ltd. (supra). Court considered the intent, purpose and object in the historical back drop of insertion of Section 438 and its progress by way of various amendments. Referring Section 2(24)(x) it said, income is defined under Section 2(24) which includes profits and gains. Further in clause (x) of Section 2(24) any sum received by Assessee from employees as contributions to any provident fund/superannuation fund or any fund set up under Act 1948, or any other fund for welfare of such employees constitute income. This is the reason why every Assessee/Employer was entitled to deduction even prior to April, 1, 1984, keeping books on mercantile system of accounting, as a business expenditure, by making provision ¡n his books of account in that regard. Assessee was capable of keeping money with him and just by mentioning in accounts, was able to claim deduction as business ....
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....ns by delaying payment of contributions to the welfare funds. But when implementation problems were pointed out for different due dates, uniformity was brought about in first proviso by Finance Act, 2003. Hence, amendment made by Finance Act 2003 in Section 43B is retrospective, being curative in nature and apply from 01.04.1988. In the result when contribution had been paid, prior to filing of return under Section 139(1), Assessee/employer would be entitled for deduction and since deletion of Second Proviso and amendment of First Proviso is curative and apply retrospectively w.e.f. 01.04.1988. 28. From the aforesaid judgment, we find that irrespective of the fact that deduction in respect of sum payable by employer contribution was involved, but Court did not restrict observations, findings and declaration of law to that context but looking to the objective and purpose of insertion of Section 43B applied it to both the contributions. It also observed clearly that Section 43B is with a non-obstante clause and therefore over ride even if, anything otherwise is contained in Section 36 or any provision of Act 1961. 29. Therefore, we are clearly of the view that law l....
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....m the above that the "law declared" is the principle culled out on the reading of a judgment as a whole in the light of the questions raised, upon which the case is decided. Ambica Quarry Works vs. State of Gujarat (1987) 1 SCC 213; and CIT vs. Sun Engg. Works (P) Ltd. (1992) 4 SCC 363. 16. The Hon'ble Supreme Court in CIT vs. RaIson Industries Ltd. (288 ITR 322) observed that when an order is passed by a higher authority, the lower authority is bound thereby keeping in view the principles of judicial discipline. 17. The High Courts are Court of record under Article 215 of the Constitution. By virtue of the provisions of Article 227, the High Courts have power of superintendence over all Courts and tribunals in their respective jurisdiction. Thus, it is implied that all Courts and Tribunals in the respective State will be bound by the decisions of the High Court. 18. In order to have fixity, finality and conclusiveness of the judicial proceedings, the 'precedents' have a remarkable role in the formation of judicial opinions, judicial orders and dispensation of justice. The concept of "Stare decisis et non quieta movere", which translates as 'to stand by things decided and ....
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.... 321 ITR 508 vide order dated 23.12.2009 held that if the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down by the Hon'ble Supreme Court in the case of Vinay Cement Ltd. 26. The brief facts of such case are as under: "2. The case relates to the assessment year 2002-03. The had filed its return on 30-10-2002 7,95,430. During the assessment Officer (AO) found that the assessee contribution as well as employees' dent fund and ESI after the due date, relevant Act/Rules. Accordingly, Rs. 42,58,574 being employees' contribution of the Act and Rs. 30,68,583 being under section 43B of the Act. Felt assessment order, the assessee preferred who decided the same vide o....
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....t an issue that the payments were not made by the assessee on the dates which have been stated to be the dates of deposits in the assessment order. If such is a factual aspect then according to latest position of law clarified by Hon'ble Supreme Court in the case of CIT v. Vinay Cement Ltd. that no disallowance could be made ¡f the payments are made before the due date of filing the return of income. This issue came before Hon'ble Supreme Court in the case of CIT v. Vinay Cement Ltd. which was a special leave petition filed by the department against the High Court Order of 26th June, 2006 in ITA No. 2/05 and ITA No. 56/03 and ITA No. 80/03 of the High Court of Guwahati, Assam and it is order dated 7th March, 2007. A copy of the said order is placed on record. The observations of their Lordships on the issue are as under .- 'In the present case we are concerned with the law as ¡t stood prior to the amendment of section 43B. In the circumstances the assessee was entitled to claim the benefit in section 43B for that period particularly in view of the fact that he has contributed to provident fund before filing of the return. The special leave petition &ie....
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....ment of section 43B. 11. In section 43B of the Income-tax Act, after Explanation4, the following Explanation shall be inserted, namely:- "Explanation5.-For the removal of doubts, it is hereby clarified that the provisions of 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.". 32. We have also perused the Memorandum Explaining the Provisions in the Finance Bill, 2021. Under the head "Provision relating to Direct Taxes" with to rationalization of various provisions, the issue of clause (24) of Section 2 sub-clause (x), Section 36(1) clause (va), Section 435 with regard to provisions of sub-Section (1) of Section 139 have been dealt at length. The gist is as under: "Rationalization of various Provisions Payment by employer of employee contribution to a fund on ':Dr Before due date Clause (24) of section 2 of the Act provides an inclusive definition of the income. Sub-clause (x) to the said clause provide that income to include any sum received by the assessee from his employees as ....
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....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, ¡n 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 435 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 from any of his employees to which provisions of sub-clause (x) o....