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TMI Blog2024 (5) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of Section 43-B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees' contributions which are deducted from their income. They are not part of the assessee employer's income, nor are they heads of deduction per se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication shall stand disposed of. ITA 302/2024 CM APPL. 31316/2024 (Stay) 1. The assessee has instituted the present appeal impugning the order of the Income Tax Appellate Tribunal [ ITAT ] dated 21 June 2023 and has posited the following questions for our consideration:- (A) Whether the Ld. ITAT is justified in law and facts and circumstances of the case in confirming order of CIT (Appeal) and Assessing Officer without appreciating the facts of the case? (B) Whether the Ld. ITAT is justified in law and facts and circumstances of the case in making addition of Rs. 51,75,094/- on account of making payment of PF ESI before filing return of income as prescribed in law? (C) Whether the Ld. ITAT is justified in law and facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of contribution received by the employer and deposited into relevant fund is income of the employee, therefore the disallowance amounts to double taxation? (K) Whether the Ld. ITAT has failed to apply its judicial mind by not considering any of the contentions raised by the Appellant in the Appeal and has not applied its mind? (L) Whether the Ld. ITAT failed to consider that the amount of contribution received by the employer (the appellant assessee in this case) from salary paid to the employees is not a deemed income because there is no deeming fiction at all in the income tax law on this point? (M) Whether the Ld. ITAT failed to consider that the deduction is not deemed income at all because there is no income in commercial parlance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 36(1)(v-a) 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 43-B. 63. In the opinion of this Court, the reasoning in the impugned judgment [CIT v. Checkmate Services (P) Ltd., 2014 SCC OnLine Guj 12521] that the non obstante clause would not in any manner dilute or o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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