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TMI Blog2022 (5) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... lead order in these bunched matters has been passed by us separately in the matter of M/s. Benco Thermal Technologies Private Ltd. V/s. Asstt. Director of Income Tax(ITA No. 281/Chny/2021 on 23.02.2022). Accordingly, our adjudication as contained therein would equally apply to all these consolidated appeals. All these appeals have been filed by the assessee for various assessment years and assail the denial of deduction of Employees' Contribution to welfare funds like PF/ESI by revenue authorities. The same is in view of the fact that the payments have been made beyond due date as specified in relevant acts governing those welfare funds and the revenue authorities have invoked the provisions of Sec. 36(1)(va) r.w.s. 2(24)(x). On the other hand, the assessee claims the deduction of contribution in terms of Sec. 43B coupled with various judicial pronouncements favoring the assessee. The stand of the assessee is that since the payments have been made before due date of furnishing of return of income u/s. 139(1), the deduction of the same would be available to the assessee. 2. In all the appeals, the revenue is represented by Shri ARV Sreenivasan (Additional Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.02.2022), the operative portion of which read as under:- Our findings and Adjudication 4. We find that as per the provisions of clause (b) of Sec. 43B of the Act, any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund and gratuity fund or any other fund for the welfare of employees would be allowed as deductions only on actual payment. However, the proviso to Sec. 43B provides that if the said sum is paid on or before due date for furnishing of return of income u/s. 139(1) of the Act, the deduction would still be available to the assessee. The term 'Income' as defined in Sec. 2(24)(x) include any sum received by the assessee from his employees as contribution to any provident fund or superannuation fund or any fund set up under the provisions of the Employees' State Insurance Act, 1948 (ESI) or any other fund for the welfare of such employees. In other words, the contribution received by the assessee from its employees towards specified welfare funds is always treated as income of the assessee. However, the provisions of Sec. 36(1)(va) of the Act provides that any sum received by the assessee in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction otherwise allowable in this Act in respect of any sum payable by the assessee as an employer by way of contribution to any welfare fund, shall be allowed if it is paid on or before the due date as contemplated under Section 139(1). This provision has nothing to do with the consequences provided for under the PF Act/PF Scheme/ESI Act, for not depositing the 'contribution' on or before the due dates as specified therein. It was examined that the expression 'contribution' as defined in Section 2(c) under the PF Act would mean a contribution payable in respect of a member under the scheme or the contribution payable in respect of an employee to whom the Insurance Scheme applies. If this definition is read with sub-para (1) of paragraph 29 in Chapter-V of the PF Scheme, it would mean that the contributions payable by the employer under the scheme shall be at a particular rate and the contribution payable by the employee shall be equal to the contribution payable by the employer. The Paragraph 30 of the PF scheme provides for payment of contributions. Sub-para (1) of paragraph 30 states that the employer shall, in the first instance, pay both the contribution paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. Following the same, similar decision was rendered in Pr. CIT V/s. Rajasthan State Beverages Corpn. Ltd. (supra). 8. We find that the revenue preferred Special leave Petition (SLP) against this decision which was dismissed by Hon'ble Supreme Court (reported as 84 Taxmann.com 185; 04/07/2017) with following observations:- 1. Delay condoned. 2. We do not find any merit in this petition. The special leave petition is, accordingly, dismissed. In other words, the issue could be said to have attained finality since no merit was found in the revenue's petition by Hon'ble Apex Court. 9. A similar view favorable to assessee has been taken by Hon'ble Karnataka High Court in Spectrum Consultants India Pvt. Ltd. V/s. CIT ( 49 Taxmann.com 29; 09.12.2013); Hon'ble High Court of Bombay in CIT V/s. Ghatge Patil Transports Ltd. (53 Taxmann.com 141; 14.10.2014); Hon'ble Delhi High Court in CIT V/s. Aimil Ltd. (188 Taxman 265 23.12.2009); Hon'ble Patna High Court in the case of Bihar State Warehousing Corp. Ltd. (88 Taxmann.com 455; 16.03.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income. Hence, following the above-said decisions, we find no reason to differ with the findings of the Tribunal. Accordingly, we find no question of law much less any substantial question of law arises for consideration in these appeals. Accordingly, both the Tax Case(Appeals) stand dismissed. No costs. Consequently, M.P. No. 1 of 2015 is also dismissed. However, in later decision titled as Unifac Management Services (India) P. Ltd. V/s. DCIT (100 Taxmann.com 244; 23.10.2018), the single judge bench of Hon'ble Court has held that the scope of Section 43B and Section 36(1)(va) are different and thus, there is no question of reading both provisions together to consider as to whether assessee-employer is entitled to deduction in respect of sum belatedly paid towards employee contribution and therefore, for considering such question, application of section 36(1)(va) read with section 2(24)(x) alone is proper course. It was further held that though an amendment has been introduced to Section 43B, whereby actual date of payment is enough for considering deduction, if such date falls before date for filing return but in absence of any amendment made to section 36(1)(va), both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee would maintain that the provisions would have prospective operations only and the pre-amended period would be largely guided by the ratio of judicial pronouncements favoring the assessee. 13. We find that this issue has already been settled by co-ordinate bench of this Tribunal in Adyar Anand Bhawan Sweets India Pvt. Ltd. V/s. ACIT (134 Taxmann.com 56; 08.12.2021). In the said decision, it has already been held by the coordinate bench that the amendment to Sec. 36(1)(va) by way of insertion of explanation-2 would operate prospectively only. This view has been taken by the bench considering the ratio of decision of Hon'ble Supreme Court in the case of CIT v. Vatika Township (P.) Ltd. [2014] 49 taxmann.com 249/227 Taxman 121/367 ITR 466 (SC) and it was finally held that the amendment brought in by Finance Act, 2021 to the provisions of Section 36(1)(va) as well as to the provisions of Sec. 43B would have prospective application only. The pertinent observations of the bench were as under:- 6.7 We noted from the judgment of Hon'ble Supreme Court in Vatika Township (P.) Ltd. (supra), that there cannot be imposition of any tax without the authority of law and such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xing statute can be said to be intended to remove hardship only of the assessee and not of the Department. Imposing of a retrospective levy on the assessee would be caused undue hardship and for that reason Parliament specifically chose to make the proviso effective from a particular date. In the present case also, the amendment brought out by Finance Act, 2021 w.e.f. 1-4-2021 i.e. for and from assessment year 2021-22 of Explanation 2 to s. 36(1)(va) of the Act and not retrospectively. 6.9 Thus, from the above, it is clear that the amendment brought in the statute i.e., by Finance Act, 2021, the provisions of section 36(1)(va) r.w.s. 43B of the Act amended by inserting Explanation 2 is prospective and not retrospective. Hence, the amended provisions of section 43B r.w.s. 36(1)(va) of the Act are not applicable for the assessment year 2018-19 but will apply from assessment year 2021-22 and subsequent assessment years. Hence, this issue of assessee's appeal is allowed. 14. So far as the argument of the Ld. DR that the employees' interest would be adversely impacted, is concerned, we find that the respective Acts governing welfare funds would take care of those eventualiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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