2022 (10) TMI 451 - AT - Income Tax

Disallowance of employee s contribution to Provident Fund and Employee State Insurance Funds - Payment date of filing of return of income - HELD THAT - This issue is now covered in favour of the assessee even after the amendment as held by ITAT Delhi Benches. ITAT, Delhi in the case of M/s. Express Roadway 2021 (10) TMI 514 - ITAT DELHI has followed Hon ble Delhi High Court decision in the case of CIT vs. AIMIL Ltd. 2009 (12) TMI 38 - DELHI HIGH COURT and SPL Industries 2010 (7) TMI 81 - DELHI HIGH COURT for the proposition that such additions are not sustainable if the impugned payments are done upto the date of filing of return of income for the concerned assessment year. Following the same, we set aside the orders of the authorities below and delete the addition. Disallowance u/s 14A - Sufficiency of own funds - HELD THAT - We note that assessee in this case has earned exempt income. All the investments for the same were done in the earlier years. Assessee s claim was that no borrowed funds were used to make the investment. Authorities below have rejected the same on the ground that assessee should have maintained separate books. However, as held in the case of CIT vs. Reliance Utilities Power Ltd. 2009 (1) TMI 4 - BOMBAY HIGH COURT and in CIT vs. HDFC Bank Ltd. 2014 (8) TMI 119 - BOMBAY HIGH COURT when assessee has sufficient interest free funds no disallowance u/s 14A is required to be done for interest. It is well settled that right of attribution lies with the assessee. In the present case, it is not the case of the Revenue that assessee has not own funds to make those investments on which exempt dividend income has been earned. Rather the case of the Revenue is that assessee should have brought in one to one nexus in the funds and investment. This view is not correct in terms of the decision of Hon ble Bombay High Court cited above, we set aside the orders of the authorities below and delete the addition in this regard. Decided in favour of assessee.

Summary

Issues:
1. Disallowance of employees' provident fund and ESI dues
2. Disallowance under section 14A

Issue 1: Disallowance of employees' provident fund and ESI dues:
The AO disallowed employees' contribution to ESI and provident fund under section 36(1)(va) read with section 2(24)(x) of the Income-tax Act, 1961 for being deposited after the due date but before the income tax return filing due date. The ld. CIT (A) upheld this decision. The ITAT Delhi Benches, following previous decisions, held that such additions are not sustainable if payments are made before the income tax return filing date. Consequently, the ITAT set aside the lower authorities' orders and deleted the addition in favor of the assessee.

Issue 2: Disallowance under section 14A:
The assessee, engaged in garment manufacturing and export, earned exempt income from equity shares. The AO sought an explanation for not applying disallowance under section 14A read with Rule 8D. The assessee argued that borrowed funds were fully utilized for business purposes, not for earning dividend income. However, the AO, referring to various decisions, disallowed interest expenditure related to exempt income due to lack of separate accounts. The ld. CIT (A) upheld this decision. The ITAT noted that the assessee had sufficient interest-free funds for investments, and the right of attribution lies with the assessee. Citing relevant Bombay High Court decisions, the ITAT set aside the lower authorities' orders and deleted the addition, stating that no disallowance under section 14A was required when the assessee had ample interest-free funds for investments.

In conclusion, the ITAT allowed the appeal filed by the assessee, pronouncing the order in open court on September 19, 2022.