Employee’s Contribution to ESI/PF paid before filing of ITR not deductible

IN THE INCOME TAX APPELLATE TRIBUNAL
BANGALORE BENCHES “B”, BANGALORE

Before Shri Chandra Poojari, AM & Smt.Beena Pillai, JM

ITA No.81/Bang/2022 : Asst.Year 2017-2018

Appellant by : Sri.Aliasgar Rampurwala, CA
Respondent by : Sri.Priyadarshini Mishra, Addl.CIT-DR

O R D E R

Per Chandra Poojari, AM :

This appeal at the instance of the assessee is directed against CIT(A)’s order dated 29.10.2021. The relevant assessment year is 2017-2018.

2. The grounds raised read as follows:-

“1. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in upholding the prime-facie adjustment to the Returned Income made by Deputy Commissioner of Income Tax, Centralised Processing Center (‘CPC’) under Section 143(1)(a) of the Act by holding that the same involved only an arithmetic calculation and was within the purview of prima facie adjustments permissible under Section 143(1) of the Act.

2. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in sustaining the adjustment amounting to Rs. 2,19,52,518 to the Returned Income under Section 143(1) of the Act, on account of employees’ portion of contribution to the Employees’ Provident Fund (“PF”), although the said amount was paid before the due date of filing the return of income under Section 139(1) of the Act for AY 2017-18 and therefore, deduction was allowable under Section 36(i)(va) read with Section 43B of the Act as applicable for the relevant Assessment Year.

2.1 That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) while disregarding the submissions filed by the Appellant, erred in misinterpreting the decision of Hon’ble Supreme Court in the case of PCIT, Jaipur v. Rajasthan State Beverages Corporation Ltd. (2017) 84 taxmann.com 185 on this issue and also disregarded the decisions of Hon’ble jurisdictional High Court and other plethora of decisions on the issue involved and hence, the order passed by the Ld. CIT(A) is bad in law.

 2.2 That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has grossly erred in relying on the amendments introduced by The Finance Act, 2021 to Section 36(1)(va) and Section 43B of the Act, without appreciating that the same were prospective in nature being effective from 1 April, 2021 and accordingly, applicable to the Assessment Year 2021-22 and onwards.

That the above grounds of appeal are without prejudice to each other. That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal.”

3. Brief facts of the case are as follows: For the assessment year 2017-2018, the return ofincome was filed on 29.03.2018, declaring total income of Rs.5,35,52,39,969. The assessee was served with an intimation u/s 143(1) of the I.T.Act by assessing the total income at Rs.5,39,74,52,527. The reason for the difference between the returned income and the assessed income u/s 143(1) of the I.T.Act was on account of disallowance of sum of Rs.2,19,52,518 being late remittance of employees’ contribution to PF and ESI under the respective Acts.
4. Aggrieved by the intimation u/s 143(1) of the I.T.Act, the assessee preferred an appeal before the first appellate authority. It was stated that the assessee had paid the employees’ contribution to PF and ESI prior to the due date of filing of the return u/s 139(1) of the I.T.Act. Therefore, it was submitted that the assessee is entitled to deduction of employees’ contribution to PF and ESI having regard to the provisions of section 43B of the I.T.Act. In this context, the assessee relied on the judgment of the Hon’ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT, reported in 366 ITR 408 (Kar.). The CIT(A), however, rejected the appeal of the assessee. The CIT(A) noticed the difference between employer and employee contribution to PF and ESI and held that only employers contribution to PF and ESI is entitled to deduction u/s 43B of the I.T.Act, if the same is paid prior to due date of filing of return of income u/s 139(1) of the Act. It was further held that the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and has got retrospective operation.
5. Aggrieved, assessee has filed this appeal before the Tribunal. The learned AR submitted that an identical issue was decided in favour of the assessee by the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DICT in ITA No.385/Bang/2021 (order dated 21.10.2021).
6. The learned Departmental Representative supported the orders of the Income Tax Authorities.
7. We have heard the rival submissions and perused the material on record. On identical facts, the Bangalore Bench of the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DCIT (supra) by following the dictum laid down by the Hon’ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra)¸ had held that the assesse would be entitled to deduction of employees’ contribution to PF and ESI provided that the payments were made prior to the due date of filing of the return of income u/s 139(1) of the I.T.Act. It was further held by the ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. The relevant finding of the ITAT in the case of M/s. Shakuntala Agarbathi Company Vs. DCIT (supra), reads as follows:

“7. We have heard rival submissions and perused the material on record. Admittedly, the assessee has remitted the employees’ contribution to ESI before the due date for filing of return u/s 139(1) of the I.T.Act. The Hon’ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT reported in 366 ITR 408 (Kar.) has categorically held that the assessee would be entitled to deduction of employees’ contribution to ESI provided the payment was made prior to the due date of filing of return of income u/s 139(1) of the I.T.Act.

The Hon’ble jurisdictional High Court differed with the judgment of the Hon’ble Gujarat High Court in the case of CIT v. Gujarat State Road Transport Corporation reported in 366 ITR 170 (Guj.). The Hon’ble High Court was considering following substantial question of law:-

“Whether in law, the Tribunal was justified in affirming the finding of Assessing Officer in denying the appellant’s claim of deductions of the employees contribution to PF/ESI alleging that the payment was not made by the appellant in accordance with the provisions u/s 36[1][va] of the I.T.Act?”

7.1 In deciding the above substantial question of law, the Hon’ble High Court rendered the following findings:-

“20. Paragraph-38 of the PF Scheme provides for Mode of payment of 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 word “contribution” used in Clause (b) of Section 43B of the IT Act means the contribution of the employer and the employee. That being so, if the contribution is made on or before the due date for furnishing the return of income under sub-section (1) of Section 139 of the IT Act is made, the employer is entitled for deduction.

21. The submission of Mr.Aravind, learned counsel for the revenue that if the employer fails to deduct the employees’ contribution on or before the due date, contemplated under the provisions of the PF Act and the PF Scheme, that would have to be treated as income within the meaning of Section 2(24)(x) of the IT Act and in which case, the assessee is liable to pay tax on the said amount treating that as his income, deserves to be rejected.
22. With respect, we find it difficult to endorse the view taken by the Gujarat High Court. WE agree with the view taken by this Court in W.A.No.4077/2013.
23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs.”

7.2 The further question is whether the amendment to section 36[1][va] and 43B of the Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon’ble Supreme Court in the recent

judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is “for the removal of doubts” cannot

be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon’ble jurisdictional High Court in the case of Essae Teraoka

(P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees’ contribution to ESI, if the payment was made prior to due date of filing of the return of income u/s 139(1) of the

I.T.Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36[1][va] and 43B of the I.T.Act, alters the position of law adversely to the assessee. Therefore, such amendment cannot be held to be retrospective in nature. Even otherwise, the amendment has been mentioned to be effective from 01.04.2021 and will apply for and from assessment year 2021-2022 onwards. The following orders of the Tribunal had categorically held that the amendment to section 36[1][va] and 43B of the Actby Finance Act, 2021 is only prospective in nature and not retrospective.

(i) Dhabriya Polywood Limited v. ACIT reported in (2021) 63 CCH 0030 Jaipur Trib.

(ii) NCC Limited v. ACIT reported in (2021) 63 CCH 0060 Hyd Tribunal.

(iii) Indian Geotechnical Services v. ACIT in ITA No.622/Del/ 2018 (order dated 27.08.2021).

(iv) M/s.Jana Urban Services for Transformation Private Limited v. DCIT in ITA No.307/Bang/2021 (order dated 11th October, 2021)

7.3 In view of the aforesaid reasoning and the judicial pronouncements cited supra, the amendment by Finance Act, 2021 to Sec.36[1][va] and 43B of the Act will not have application to relevant assessment year, namely A.Y. 2019-2020. Accordingly, we direct the A.O. to grant deduction in respect of employees’ contribution to ESI since the assessee has made payment before the due date of filing of the return of income u/s 139(1) of the I.T.Act, It is ordered accordingly.”

7.1 Therefore, the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment years under consideration. By following the binding decision of the Hon’ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra), the employees’ contribution paid by the assessee before the due date of filing of return of income u/s 139(1) of the I.T.Act is an allowable deduction. Accordingly, we decide this issue in favour of the assessee and the disallowance made by the Assessing Officer is deleted.

8. In the result, the appeal filed by the assessee is allowed. Order pronounced on this 23rd day of March, 2022.

       Sd/-                                                                                                                                                     Sd/-
(Beena Pillai)                                                                                                                      (Chandra Poojari)
JUDICIAL MEMBER                                                                                                            ACCOUNTANT MEMBER

Bangalore; Dated : 23rd March, 2022.
Devadas G*

Copy to :

1. The Appellant.
   2. The Respondent.
   3. The CIT(A) NFAC, Delhi.
   4. The Pr.CIT, Bangalore.
   5. The DR, ITAT, Bengaluru.
   6. Guard File.

Asst.Registrar/ITAT, Bangalore