2021 (3) TMI 75 - AT - Income Tax

Disallowance of claims of superannuation fund u/s. 40A(9) and gratuity fund u/s. 40A(7) - AO was of the view that the provision of approved superannuation and Gratuity Fund in Part B and C in IV Schedule run similar and alike while the provisions for approval of provident fund in Part A of the 4th Schedule is totally distinct different from those in Part B C - HELD THAT - As decided in 2018 (4) TMI 553 - ITAT VISAKHAPATNAM the assessee has made the payments to the LIC towards group gratuity scheme directly in approved schemes. The assessee has also obtained the policy in favour of the bank. The assessee has no control over the funds contributed to LIC towards the gratuity. The assessee is receiving the gratuity payment directly from the LIC of India as per the scheme which is paid to the employee on happening of the event i.e. retirement or death or resignation. See Warner Hindustan Ltd 1987 (8) TMI 52 - ANDHRA PRADESH HIGH COURT . Since the facts are identical, respectfully following the view taken by the coordinate benches, we hold that the assessee is entitled for the deduction for payment of gratuity to LIC and accordingly, we set aside the order of the lower authorities and allow the appeal of the assessee.

Issues Involved:
1. Disallowance of the assessee's contribution to the Employees' Superannuation Fund under Section 40A(9).
2. Classification of the contribution to the Employees' Superannuation Fund as a mere provision.
3. Disallowance of deduction for the contribution to the Employees' Superannuation Fund under Section 37(1) read with Section 43B.
4. Impact of inaction by the Income-tax department on the assessee.
5. Disallowance of the assessee's contribution to the Employees' Gratuity Fund under Section 40A(7).
6. Classification of the contribution to the Employees' Gratuity Fund as a mere provision.
7. Disallowance of deduction for the contribution to the Employees' Gratuity Fund under Section 37(1) read with Section 43B.
8. Impact of inaction by the Income-tax department on the assessee.

Detailed Analysis:

1. Disallowance of the Assessee's Contribution to the Employees' Superannuation Fund under Section 40A(9):
The AO disallowed the contribution of ?21,01,654 to the Employees' Superannuation Fund under Section 40A(9) of the Income-tax Act, 1961. The CIT(A) upheld this disallowance, leading to the current appeal. The assessee contended that the contribution was made to a scheme administered by LIC, and thus should be considered a business expenditure. The Tribunal found merit in the assessee's argument, citing precedents where contributions to LIC-administered schemes were allowed as deductions.

2. Classification of the Contribution to the Employees' Superannuation Fund as a Mere Provision:
The AO classified the contribution as merely a provision, which was disputed by the assessee. The Tribunal noted that the contributions were made to LIC under a recognized scheme, and thus should not be treated as mere provisions. This classification was found to be incorrect by the Tribunal.

3. Disallowance of Deduction for the Contribution to the Employees' Superannuation Fund under Section 37(1) read with Section 43B:
The Tribunal referred to various judgments, including those from the Supreme Court and High Courts, which supported the claim that contributions to approved funds should be allowed as deductions under Section 37(1) read with Section 43B. The Tribunal concluded that the disallowance by the lower authorities was not justified.

4. Impact of Inaction by the Income-tax Department on the Assessee:
The assessee argued that the delay in approval by the Income-tax department should not result in a disallowance. The Tribunal agreed, citing precedents where similar delays did not affect the deductibility of contributions. The inaction by the department was not considered a valid reason for disallowance.

5. Disallowance of the Assessee's Contribution to the Employees' Gratuity Fund under Section 40A(7):
The AO disallowed the contribution of ?21,84,256 to the Employees' Gratuity Fund under Section 40A(7). The CIT(A) upheld this disallowance. The Tribunal found that contributions to LIC-administered schemes, even if not approved, should be allowed as deductions. This view was supported by several judgments, including those from the ITAT and High Courts.

6. Classification of the Contribution to the Employees' Gratuity Fund as a Mere Provision:
Similar to the superannuation fund, the AO classified the contribution to the gratuity fund as a mere provision. The Tribunal found that the contributions were made to LIC under a recognized scheme, and thus should not be treated as mere provisions. This classification was found to be incorrect by the Tribunal.

7. Disallowance of Deduction for the Contribution to the Employees' Gratuity Fund under Section 37(1) read with Section 43B:
The Tribunal referred to various judgments, including those from the Supreme Court and High Courts, which supported the claim that contributions to approved funds should be allowed as deductions under Section 37(1) read with Section 43B. The Tribunal concluded that the disallowance by the lower authorities was not justified.

8. Impact of Inaction by the Income-tax Department on the Assessee:
The assessee argued that the delay in approval by the Income-tax department should not result in a disallowance. The Tribunal agreed, citing precedents where similar delays did not affect the deductibility of contributions. The inaction by the department was not considered a valid reason for disallowance.

Conclusion:
The Tribunal allowed the appeal of the assessee, concluding that the contributions to the Employees' Superannuation Fund and Gratuity Fund, administered by LIC, should be allowed as business expenditures. The disallowances made by the AO and upheld by the CIT(A) were found to be incorrect. The Tribunal's decision was based on various judicial precedents that supported the deductibility of such contributions.

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