The amended provisions of Section 154 cannot be applied retroactively

Facts and Issues of the case

None appeared for the assessee-appellant when the appeal was called out for hearing. There is, however, on record a written note by its’ counsel, Sh. Rahul Bardia, stating that the sole issue arising in appeal is the disallowance of employee’s contribution to the employee welfare funds, on account of the same having been deposited beyond the due date of its deposit under the relevant Fund in view of s.2(24)(x) r/w s. 36(1)(va), and that the assessee places reliance on the decision by this Bench in Tribunal in Nikhil Mohine v. Dy. CIT (in ITA Nos. 37 & 38/Jab/2021, dated 18.11.2021/copy on record), a decision which is stated to be squarely on the point. The ld. Sr. DR., Sh. Gupta would, upon inquiry by the Bench, admit to the impugned sums having been deposited by 30/9/2021, i.e., the due date of filing the return of income for the relevant year. He would further state of being not in the know of any decision by the Hon’ble jurisdictional High Court to the contrary, i.e., opining that the employee’s contribution to the employee welfare fund is to be, as required u/s. 2(24)(x) r/w s. 36(1)(va), deposited by the assessee-employer by the due date of its deposit under the relevant Act for the same not to be disallowed in computing his total income under the Act.

Observation by the court

Court had heard the parties, and perused the material on record.Our first observation in the matter is that the issue at hand is, in view of the several decisions to the contrary, debatable, and therefore could not have been made under section 143(1), even as clarified by the Hon’ble jurisdictional High Court in CIT v. Shikarchand Jain [2003] 263 ITR 221 (MP); CIT v. GEI Engineering Ltd. [2009] 310 ITR 112 (MP), as indeed by the Tribunal in Nikhil Mohine (supra). The Tribunals’ decision in Nikhil Mohine .The Revenue has, invoking section 2(24)(x) r/w s. 36(1)(va), added the Employees’ contribution to the Employee Provident Fund to the assessee’s returned income u/s. 143(1) as the same stood deposited beyond the due date/s specified u/s. 36(1)(va), even as, admittedly, prior to the due date of filing the return of income u/s. 139(1) for the relevant years. Reliance stands placed by it on, among others, CIT v. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj); CIT v. Merchem Ltd. [2015] 378 ITR 443 (Kerala); and Unifac Management Services (India) P. Ltd. v. Asst. CIT [2018] 409 ITR 225 (Mad). (refer para 4.7 of the impugned order). The matter stands examined at length by the Tribunal in Nikhil Mohine (supra), relied upon by the appellant, wherein, noticing, inter alia, the cited decisions, it held that in view of the cleavage of judicial opinion in the matter and the limited scope of an adjustment u/s. 143(1)(a) (or an amendment u/s. 154), the same could not be decided on merits.

The decisions by the Hon’ble High Courts holding the employee’s contribution as being covered by s. 43B(b), implying, in context, u/s. 37(1) r/w s. 43B(b), which were aplenty (para 3 of the impugned order), it opined, could be validated only by disregarding the clear language of the relevant provisions, upheld constitutionally and not read down. The said decisions must nevertheless be respected, so that, there being no decision by the Hon’ble jurisdictional High Court in the matter, no adjustment contrary thereto could be made u/s. 143(1) or u/s. 154. The only manner, therefore, available for the Revenue to effect an adjustment u/s. 143(1)/154 is where the Explanations to section 36(1)(va) and s. 43B(b) inserted by Finance Act, 2021, which attempt to resolve the issue of the employee’s contribution to the employee welfare funds as being governed by section 43B(b), i.e., to the exclusion of s. 36(1)(va), are held as retrospective. Legislative intent being the cornerstone and the sole determinant of any interpretative exercise, both the language of the relevant provisions, as well as of the recently inserted Explanations thereto, introduced with a view to, as stated therein, remove any doubt in the matter, it opined, are unambiguously clear, so that s. 36(1)(va) and s. 43B operate in different fields and are applicable on different sums.

Further, the stated date of the coming into effect (of the Explanations), i.e., 01/4/2021, it explained, would though be of no moment in view of the express language deeming the stated position as applicable since inception; that being the reason for bringing the Explanations on the statute, as the said amendments could otherwise have been effected through prospective clause/s to the relevant provisions. Rather, the tenor of the language employed, clearly giving the stated position a retrospective effect, necessarily requires the Explanations to be read as inserted from a later date.

That is, the fact of insertion of the said Explanations w.e.f. a later date is consistent with the language giving it a retrospective effect and, thus, does not impinge adversely on it being regarded as so. Further still, noticing the settled legal position qua the test for determining retrospectivity, i.e., if a provision could be construed without the aid of the subsequent amendment thereto to take within its ambit the said amendment, the issue was also examined by the Tribunal on merits, i.e., for the said limited purpose, to find that the view canvassed by or on the assessee’s behalf could be sustained only by ignoring the existence of s. 36(1)(va) – which governs the deductibility of the employees’ contribution to the employee welfare funds, on the statute-book; clearly, an impermissibility.

Another fundamental infirmity in the assessee’s argument is in regarding the employee’s contribution, deemed by the legal fiction of s. 2(24)(x) as the assessee-employer’s income, as an expense deductible u/s. 37(1), which could be so only where it is not recoverable – an impossibility, as the said deeming applied only on receipt thereof, again bringing s. 36(1)(va) into play for its deduction, and which would therefore have to be given effect to. That is, even regarding the same, for the sake of argument, as covered by s. 43B, a non-obstante provision, inasmuch as s. 43B applied only qua deductions ‘otherwise allowable’, i.e., under any provision of the Act, it rendered the question of law posed before the Hon’ble Courts, i.e., if the employee’s contribution to the employee welfare funds is exclusively covered u/s. 43B, as itself, with respect, misplaced, if not irrelevant.

The view being canvassed was, thus, it held, viewed from any angle, wholly untenable. The view expressed by the Tribunal is in fact in agreement with that projected by the Board per its Circular (No. 22/2015, dtd. 17/12/2015), as also that canvassed per the impugned order/s with reference to several decisions, both explaining, as did the Explanatory Notes on the insertion of s. 36(1)(va) on the statute, the object of the said provision. It is this view, which in fact, as also noticed by the Tribunal, represented the uniform view across all the Hon’ble Courts prior to the deletion of the second proviso to s. 43B by Finance Act, 2003, w.e.f. 01/4/2004, and which (view) the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective.

The said Explanations, the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The amendments by way of Explanation 5 to s. 43B and Explanation 2 to s. 36(1)(va), it concluded, are to therefore take effect only from AY 2021-22, and which view is unmistakable on a plain reading of the said documents.

The view recorded in the impugned order/s on the merits of the additions even as the same agrees with that expressed by the Tribunal in Nikhil Mohine (supra)(see para 3.2 of this order), is of little consequence in view of the limited scope of an adjustment u/s. 143(1), the law on which is well-settled, with the Explanatory Notes to the Provisions of the Finance Bill, 2021 itself admitting of a conflict of judicial opinion, explaining that to be the reason for effecting the amendments per the said Explanations. The only circumstance justifying the impugned addition/s is a decision/s by the Hon’ble jurisdictional High Court (also see para 4.2). No such decision, however, despite asking, stands brought to our notice by the parties, or otherwise found.

The decision by the Hon’ble jurisdictional High Court in B.S. Patel v. Dy. CIT [2010] 326 ITR 457 (MP), also noticed in Nikhil Mohine (supra), is not squarely on the point and, therefore, of no assistance to the Revenue. As regards the aspect of the retrospective nature of the Explanations under reference, court again find no difference in the view expressed in the impugned order/s, with that by the Tribunal in Nikhil Mohine (supra), i.e., per se. So, however, as afore-noted, the said Explanations themselves stand proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, with a view to, as explained, settle the controversy arising due to the contrary view expressed by some High Courts, for which reference may be made to para 5.4 of the Tribunal’s order (also refer paras 3.2 & 3.3 above). There is, accordingly, no question of the same being given a retrospective effect.

There is, in view of the foregoing, no question of the said Explanations being read as retrospective, so as to apply for the relevant years, sustaining the impugned additions, which therefore fail. This is, however, subject to any decision/s by the Hon’ble jurisdictional High Court, which would, where so, hold, even justifying a rectification u/s. 154/254(2), and even where rendered after the date of the order sought to be rectified (Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC); CIT v. Aruna Luthra [2001] 252 ITR 76 (P&H)(FB)).

No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine (supra). Any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. The impugned additions, therefore, could not have been made under the given facts and circumstances of the case, and are directed for deletion. Court decide accordingly.