Pik Pen Pvt Ltd vs. ITO (ITAT Mumbai)

DATE: (Date of pronouncement)
DATE: March 11, 2010 (Date of publication)

Click here to download the judgement (pik_pen_43B_employees_contribution.pdf)

Delayed payment of employees’ PF contribution allowable u/s 43B

The assessee paid the employees’ contribution to PF and ESIC after the grace period but before the due date for filing the return. The AO disallowed the payment u/s 36(1) (va) and held that s. 43B had no application. This was confirmed by the CIT (A). On appeal, HELD deciding in favour of the assessee:

In Alom Extrusion Ltd 319 ITR 306 the Supreme Court held that the omission of the second proviso to s. 43B by the Finance Act 2003 operated retrospectively w.e.f. 1.4.1988. The Court held that the contribution payable by the employer to the P.F/Superannuation Fund or any other Fund of welfare of the employees was allowable if paid before the due date of filing the return. Consequently, the issue is covered in favour of the assessee and the deduction is allowable u/s 43B.

Note: The same view has been taken in CIT vs. AIMIL Limited (Delhi High Court) and Radhakrishna Foodland vs. ACIT (Mum). For the law on payments within grace period see WMI Cranes (Bombay HC)