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TMI Blog2019 (6) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... and clause (va) of section 36(1) and would not be affected by section 43B. The non obstante clause of section 43B had no effect in so far as the employees' contribution which was specifically covered by clause (va) of section 36(1). By virtue of the Explanation below clause (va), no deduction could be claimed if the contribution had not been paid after collection from the employees by way of deduction from their salaries, within the due date under the labour welfare Acts. The deletion of a proviso under section 43B could not render otiose the Explanation under section 36(1)(va) - Decided against assessee. - I.T.A. No.51 /Coch/2019 - - - Dated:- 19-6-2019 - S/Shri Chandra Poojari, AM And George George K., JM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 We have heard the rival submissions and gone through the reasons advanced by the assessee for filing the appeal belatedly before this Tribunal. We are satisfied with the reasons explained by the assessee for filing the appeal belatedly. Accordingly, we condone the delay of 79 days in filing the appeal and admit the appeal for adjudication. 3. The assessee has raised the following grounds of appeal: A: The orders of the authorities below in so far as they are against the appellant are opposed to law, facts and circumstances of the case. B: The averments made before the first appellate authority, by way of written submissions have not been taken into account by the said authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. Though this judgment is relied on before the first appellate authority, he has sought to bypass the said dictum taking the view that the finding is only in an SLP and not in a civil appeal. This interpretation by the first appellate authority is without any justification and arbitrary. H: The other grounds will be raised at the time of hearing. 4. The facts of the case are that the assessment under section 143(3) of the I.T. Act was completed on 05.12.2016 determining the total income at ₹ 9,54,020/-. Subsequently, the Assessing Officer issued a notice under section 154 of the Act to disallow the contribution received from employees towards EPF under section 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee also relied on the judgment of the Supreme Court in SLP in the case of Rajasthan State Beverages Corporation Ltd. (250 Taxman 16) wherein it was held as under: Section 43B, read with section 36(1)(va), of the Income-tax Act, 1961 Business disallowance Certain deductions to be allowed only on actual payment (PF and ESI contribution) High Court by impugned order held that amount claimed on payment of PF and ESI having been deposited on or before due date of filing of returns same could not be disallowed under section 43B or under section 36(1)(va) Whether SLP against said impugned order was to be dismissed Held, yes in favour of assessee. 5.1 However, the CIT(A) obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Jammu Development Authority cannot be construed as having the effect of elocution of law by the Hon'ble Supreme Court on the subject against the assessee. 5.2 In the light of the decision of the Tribunal, the CIT(A) observed that the assessee cannot rely on the decision of the Supreme Court in the case of Rajasthan State Beverages Corporation Ltd. 84 taxmann.com 185 to claim relief. Further, it was observed that the the issue of allowability of deduction under section 36(1)(va) of the Act on the employees contribution towards EPF was covered against the assessee by the decision of the High Court of Kerala in the case of Merchem Ltd, (378 ITR 443) wherein it was held that the deduction under section 36(1)(va) is avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowable as a deduction in the assessment year, dehors the fact that it was paid in the subsequent year. Since the employees' contribution was collected from the employees as a deduction in their salary itself it would in effect be income of the assesses, as had been indicated in the definition of income under section 2(24)(x). The employees' contribution towards the funds was regulated by sub-clause (x) of section 2(24) and clause (va) of section 36(1) and would not be affected by section 43B. The non obstante clause of section 43B had no effect in so far as the employees' contribution which was specifically covered by clause (va) of section 36(1). By virtue of the Explanation below clause (va), no deduction could be cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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