Income Tax Appellate Tribunal (ITAT), New Delhi: The Coram of Pradip Kumar Kedia (Accountant Member) and Narender Kumar Choudhry (Judicial Member) allowed an appeal which was filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals) -XXXVI, New Delhi passed by the Assessing Officer under Section 143(3) of the Income Tax Act, 1961 concerning AY 2013-14. The instant appeal challenged the disallowance of Rs 45,60,061 on account of delayed payment of employee’s contribution towards EPF and ESIC.
The Tribunal on perusal of records observed that the Assessing Officer has made the impugned addition on the ground that the assessee has deposited employee’s contribution towards Provident Fund and ESI amounting to Rs 45,60,061/ – after due date as prescribed under the relevant Act/ Rules in breach of Explanation 5 to Section 43B of the Act. The Assessing Officer accordingly resorted to the additions under Section 36(1)(va) read with Section 2(24) (x) of the Act. Case of the assessee before lower authorities was that it had deposited the employee’s contribution in EPF and ESIC before the due date of filing of return of income stipulated under Section 139(1) of the Act.
The Tribunal found that a similar issue was decided in favour of the assessee by the Delhi High Court in the case of Pr.CIT v. Pro Interactive Service (India) (P) Ltd., ITA No.983 of 2018 order dated 10-09-2018 extract of which is as under:
“In view of the judgment of the Division Bench of Delhi High Court in Commissioner of Income-Tax versus Aimil Limited, (2010) 321 ITR 508 (Del ) the issue is covered against the Revenue and, therefore, no substantial quest ion of law arises for consideration in this appeal . The legislative intent was / is to ensure that the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee’s Provident Fund (EPF) and Employee’s State Insurance Scheme (ESI ) as deemed income of the employer under Sect ion 2(24) (x) of the Act .”
Following the above binding precedents the Tribunal directed the Assessing Officer to allow the claim of the assessee and delete the addition. The Tribunal allowed the appeal of the assessee finding that the delayed payment of employee’s contribution to EPF/ESIC is not disallowable as the amendments to Section 36(1) (va) and Section 43B effected by Finance Act, 2021 were applicable prospectively in relation to Assessment Year 2021-22 and subsequent years. Therefore, the claim of deduction of contribution to Employee’s State Insurance Scheme (ESI) and Provident Fund u/s.36(1) (va) could not be denied to the assessee in Assessment Year 2014-15 in question on the basis of amendments made by Finance Act , 2021 finding support from the decision of the Co-ordinate Bench of Tribunal in the case of The Continental Restaurant and Café Company v. ITO, (2021) 91 ITR (Trib. )(S.N. ) 60 (Bang. ) and Adyar Ananda Bhavan Sweets India P. Ltd. vs. ACIT, ITA No.402 and 403/Chny/2021 order dated 08-12-2021.[Kiwi Enterprises (P) Ltd. v. ACIT, 2022 SCC OnLine ITAT 148, decided on 21-04-2022]
Appellant by: None
Respondent by: Shri Parikshit Singh, Sr.D.R.