2023 (3) TMI 330

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..... under the respective acts but well before the due date of filing of return of income u/s. 139(1) - Decided against assessee.
SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER For the Assessee by Shri Pradeep Chaturvedi For the Revenue by Ms. Indira Adakil ORDER PER M. BALAGANESH (A.M): This appeal in ITA No. 3270/Mum/2022 for A.Y.2018-19 arises out of the order by the ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre in appeal No.CIT(A)-17, Mumbai/10177/2019-20 dated 31/10/2022 (ld. CIT(A) in short) against the order of assessment passed u/s.143(1) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 13/11/2019 by the ld. Dy. Commissioner of Income Tax-CPC .....

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..... ) - unless the conditions spelt by Explanation to section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts - the employer's liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees' income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under section 43B. 54. In the opinion of this Court, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the em .....

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..... it is an essential condition for the deduction that such amounts are deposited on or before the due date. If such interpretation were to be adopted, the non-obstante clause under section 43B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee's contribution on or before the due date as a condition for deduction. 55. In the light of the above reasoning, this court is of the opinion that there is no infirmity in the approach of the impugned judgment. The decisions of the other High Courts, holding to the contrary, do not lay down the correct law. For these reasons, this court does not find any reason to interfere with the impugned judgment. The appeals are accordingly dismis .....

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