Tribunal held that with respect to all the AYs prior to 2021-22, non obstante clause u/s 43B could not apply in case of amounts which were held in trust as was case of employee’s contribution which were deducted from their income and was held in trust by assessee-employer as per S. 2(24)(x), thus, said clause would not absolve assessee-employer from its liability to deposit employee’s contribution on or before due date as a condition for deduction. Thus, the assessee’s appeal was dismissed. Followed Checkmate Services (P.) Ltd. v. CIT /[2022] 448 ITR 518/[2023] 290 Taxman 19 (SC) .(AY 2018-19) (Referrd CIT v. Madras Radiators & Pressing Ltd (2003) 264 ITR 620 / 129 Taxman 709 (Mad)(HC)
Adani Infrastructure and Developers (P) Ltd. v. Dy CIT (Ahd.) 201 ITD 805(Trib)/Chase Security. v. ITO (2023) 198 ITD 351 (Bang) (Trib.) Jai Ambe Agricultural Industries v. Dy. CIT (2023) 201 ITD 600 (Varanasi)(Trib) Microviews Infosystems (P.) Ltd. v. Dy.CIT (2023) 201 ITD 626 (Kol (Trib.) Ocean Exim India (P) Ltd. v. ITO [2023] 200 ITD 366 (Jaipur) (Trib.) Precot Ltd. v. ACIT [2023] 201 ITD 350 (Chennai)Trib) Creative Textile Mills (P.) Ltd. v. Dy. CIT [2023] 201 ITD 871 (Mum)(Trib.) Dy. CIT v. Hanon Climate Systems India P. Ltd. (2023) 103 ITR 60 (SN) (Delhi)(Trib) Swatantra Microfin P. Ltd. v Centralised Processing Center (2023)105 ITR 181 (Mum)(Trib)
S. 36(1)(va) : Any sum received from employees-Employee’s contribution held in trust -Failure to pay within due date under respective Acts-Not allowable as deduction. [S. 2(24)(x),43B,139(1)]
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