Disallowance of PF and ESIC

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Devendra (Querist)
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24 February 2011 The payment of ESIC and PF is made after the due date. Then who's share (Contribution) is disallowed, the employees or the employer's?
Please tell me. Its urgent. Also give me the section.

CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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24 February 2011 it should be disallowed u/s 36(1)(va) and hitherto it was being disallowed only and no allowance even after payment of the same was allowable.

However it has been held by the Honourable High Court of Delhi in Commissioner of Income Tax vs. Aimil Ltd. & Others in (2010) 229 CTR (Del) 418 : (2010) 35 DTR 68 as under:

Even employees’ contribution to PF paid before due date of filing ROI is allowable u/s 43B

S. 2 (24) (x) provides that amounts received by an assessee from employees towards PF contributions etc shall be “income”. S. 36 (1) (va) provides that if such sums are contributed to the employees account in the relevant fund on or before the due date specified in the PF etc legislation, the assessee shall be entitled to a deduction. The second Proviso to s. 43B (b) provided that any sum paid by the assessee as an employer by way of contribution to any provident etc fund shall be allowed as a deduction only if paid on or before the due date specified in 36(1)(va). After the omission of the second Proviso w.e.f 1.4.2004, the deduction is allowable under the first Proviso if the payment is made on or before the due date for furnishing the return of income. The High Court had to consider whether the benefit of s. 43B can be extended to employees’ contribution as well which are paid after the due date under the PF law but before the due date for filing the return. HELD deciding in favour of the assessee:

(i) Though the revenue has argued that a distinction is to be made between “employers’ contribution” and “employees’ contribution” and that employees’ contribution being in the nature of trust money in the hands of the assessee cannot be allowed as a deduction if not paid on or before the due date specified in the PF etc law, the scheme of the Act is that employees’ contribution is treated as income u/s 2(24)(x) on receipt by the assessee and allowed as a deduction u/s 36(1)(va) on making deposit with the concerned authorities. S. 43B(b) stipulates that such deduction would be permissible only on actual payment;

(ii) The question as to when actual payment should be made is answered by Vinay Cements 213 CTR 268 where the deletion of the second Proviso to s. 43B w. e. f. 1.4.2004 was held applicable to earlier years as well. As the deletion of the 2nd Proviso is retrospective, the case has to be governed by the first Proviso. Dharmendra Sharma 297 ITR 320 (Del) & P. M. Electronics 313 ITR 161 (Delhi) followed;

(iii) If the employees’ contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down in Vinay Cement.

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CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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24 February 2011 https://www.taxmann.com/fileopener.aspx?surl=https://www.taxmann.com/taxmannflashes/flashart9-2-10_6.htm&searchid=2489

Also see above link for more clarification.

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