2010 (2) TMI 950 - AT - Income Tax

Whether delayed payment of provident fund/Employees State Insurance Corporation contribution can be subjected to a disallowance under section 43B in the course of rectification proceedings Held that - Even if employees contribution to provident fund is paid beyond the due date but before the filing of the income-tax return, disallowance under section 43B cannot be resorted to - Assessing Officer has made disallowance by way of rectification order and that disallowance is to be examined by us on the touchstone of applicability of the legal position. Merely because similar disallowance has reached finality in the past it cannot work as an estoppel against law - if that legal position does not support the disallowance, the rectification order by way of which disallowance has been made cannot be approved either - Addition deleted - In favor of assessee

Summary

Issues:
Delay in filing appeal due to inadvertent mistake by employee of tax consultant, condonation of delay, correctness of addition under section 43B read with section 154 of the Income-tax Act, 1961.

Delay in Filing Appeal:
The appellant sought condonation for a hundred-day delay in filing the appeal, attributing it to an inadvertent mistake by an employee of the tax consultant. The appellant emphasized that the delay was unintentional, beyond their control, and not with malicious intent. Citing relevant judgments, the appellant argued for condonation, which was opposed by the Departmental representative. The Tribunal, after considering the explanations, condoned the delay, deeming it reasonable and not deliberate, thereby proceeding to decide the appeal on its merits.

Addition under Section 43B:
The appellant contested the addition of Rs. 29,64,715 under section 43B read with section 154 of the Act. The Assessing Officer had disallowed this amount concerning delayed payments of provident fund and Employees State Insurance Corporation contributions. The Commissioner of Income-tax (Appeals) confirmed this addition, leading to the appeal. The Tribunal analyzed the factual background, noting the disallowances made during the original assessment and subsequent rectification order. The Tribunal scrutinized the legal position and the Delhi High Court's ruling, emphasizing that disallowance under section 43B for employees' contributions paid before the due date of filing the income tax return is not permissible. The Tribunal concluded that the rectification order's disallowance was not sustainable, as it did not align with the legal interpretation. Therefore, the Tribunal set aside the Commissioner's order and deleted the addition of Rs. 29,64,715 made under section 43B read with section 154 of the Act.

Conclusion:
The Tribunal allowed the appellant's appeal, primarily based on the legal interpretation that disallowance under section 43B could not be applied to employees' contributions paid before the due date of filing the income tax return. The Tribunal emphasized the importance of aligning rectification orders with prevailing legal positions and overturned the Commissioner's decision on the addition.