TMI Blog2022 (12) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... /Kol/2021 - - - Dated:- 31-10-2022 - SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER Appellant by : Shri Dipankar Guha, Advocate Respondent by : Smt. Ranu Biswas, Addl. CIT, DR ORDER PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal by the assessee is arising out of the order of Ld. CIT(A)- 4, Kolkata in ITA No. 1891/CIT(A)-4/Circle-10/Kol/14-15 dated 11.08.2016 against the assessment order passed under section 154/143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act) by DCIT, Circle-10, Kolkata, dated 23.01.2014. 2. At the outset, registry has pointed out that there is a delay of 1612 days in filing the present appeal before the Tribunal. A petition for cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... want of rectification. The procedure for rectification is an independent process and the order arising out of such rectification process is also an appealable order under the provisions of the Act. The proper course of action is to file the appeal within the permissible limitation, pursue the rectification of mistake before the appropriate authority u/s. 154 of the Act and separately take up the matter in appeal, if the need so arise, in respect of any order passed u/s. 154 of the Act. Though, we do not appreciate the approach adopted by the assessee in filing the instant appeal, however, without laying down any precedence and by taking the justice oriented approach, we condone the delay of 1612 days in filing the appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as income. The inclusion of a class of receipt, i.e., amounts received (or deducted from the employees) were to be part of the employer/assessee's income. Since these amounts were not receipts that belonged to the assessee, but were held by it, as trustees, as it were, Section 36(1)(va) was inserted specifically to ensure that if these receipts were deposited in the EPF/ESI accounts of the employees concerned, they could be treated as deductions. Section 36(1)(va) was hedged with the condition that the amounts/receipts had to be deposited by the employer, with the EPF/ESI, on or before the due date. The last expression due date was dealt with in the explanation as the date by which such amounts had to be credited by the employer, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IT Act, between the two. There is no doubt that in Alom Extrusions, this court did consider the impact of deletion of second proviso to Section 43B, which mandated that unless the amount of employers' contribution was deposited with the authorities, the deduction otherwise permissible in law, would not be available. This court was of the opinion that the omission was curative, and that as long as the employer deposited the dues, before filing the return of income tax, the deduction was available. A reading of the judgment in Alom Extrusions, would reveal that this court, did not consider Sections 2(24)(x) and 36(1)(va). Furthermore, the separate provisions in Section 36(1) for employers' contribution and employees' con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyer. The significance of this provision is that on the one hand it brought into the fold of income amounts that were receipts or deductions from employees income; at the time, payment within the prescribed time by way of contribution of the employees' share to their credit with the relevant fund is to be treated as deduction (Section 36(1)(va)). The other important feature is that this distinction between the employers' contribution (Section 36(1)(iv)) and employees' contribution required to be deposited by the employer (Section 36(1)(va)) was maintained - and continues to be maintained. On the other hand, Section 43B covers all deductions that are permissible as expenditures, or out-goings forming part of the assessees' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation of every assessee under Section 43B. The non-obstante clause in section 43B would not in any manner dilute or override the employer's obligation under section 36(1)(va) to deposit the amounts retained by it or deducted by it from the employee's income, unless the condition that it is deposited on or before the due date, is correct and justified. The nonobstante clause has to be understood in the context of the entire provision of Section 43B 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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