2023 (10) TMI 1267

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....order dated 18.08.2022 passed for Assessment Year 2014-15. 2. The assessee has taken the following grounds of appeal:- "1. The Ld. Commissioner (Appeals) has erred in confirming the order of ACIT without considering our submission and has made addition in the Assessment order. He further erred in holding that such payment is disallowed as there was a delay in the depositing the same to the Government treasury. He failed to appreciate that- The payment being done has to be allowed u/s 36 of the Act. The Appellant prays that the AO be directed to allow the said contribution Rs. 31,38,091/- as business expenses u/s 36 of the Act. So, it is prayed to your honour that addition may please be deleted. 2. The ld. Commissioner (Appeal....

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....ate case." 5. The assessee is in appeal before us against the aforesaid order passed by the Ld. CIT(A) confirming the addition. We observe that the position on this issue has now been unambiguously clarified by the Hon'ble Supreme Court with respect to all assessment years prior to AY 2021-22 in the case of Checkmate Services (P.) Ltd. [2022] 143 taxmann.com 178 (SC) wherein the Supreme Court held that for assessment years prior to AY 2021-22, non obstante clause under section 43B could not apply in case of amounts which were held in trust as was case of employee's contribution which were deducted from their income and was held in trust by assessee employer as per section 2(24)(x), thus, said clause would not absolve assessee-empl....