PF (Provident Fund) and ESI (Employee State Insurance) is basically governed by three sections viz. 2(24)(x), 36(1)(va) and Section 43B. But before discussing these three sections first we would discuss the basic principles of PF and ESI.
PF (Provident Fund)/ESI (Employee State Insurance): – The contribution to PF is being governed by provisions of Employees’s Provident Fund and Miscellaneous Provisions Act, 1952 and provides that an amount of 12% of basic salary of will be deducted from the salary and to be deposited towards providing social security to employee and similar amount will have to be deposited by the employer. Any organization having more than 20 employees will have to get itself registered under the EPF Act and Salary slab for deduction of PF is Rs. 15000/- per month (The limit was Rs. 6500/- per month till 31st August 2014).
ESI is being governed by Employee State Insurance Act, 1948 and it requires that 1.75% of Gross Salary will be deducted from employee’s salary and 4.75% is to be contributed by the employer. Any organization having more than 10 employees will have to get itself registered under the ESI Act and Salary slab for deduction of PF is Rs. 21000/- per month (The limit was Rs. 15000/- per month till 3oth September August 2016).
Accounting Entry to be passed at the time of booking of salary
Salary A/c Dr.
PF Employer Contribution A/c Dr.
ESI Employer Contribution A/c Dr.
LWF Employer Contribution A/c Dr.
To Salary Payable A/c
To TDS Payable A/c
To PF Payable A/c
To ESI Payable A/c
To LWF Payable A/c
(Being salary payable for the month of ……………………… to Mr. xxxxxxxxxxxxxx)
Now we discuss about the taxation treatment of different parts of PF/ESI. Section 2(24) deals with definition of income and its clause (x) reads as follows:-
“any sum received by the assessee from his employees as contributions to any provident fund or superannuation fund or any fund set up under the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), or any other fund for the welfare of such employees”
so plain reading of section 2(24)(x) means that any amount deducted as employee contribution will be treated as income of assessee and for claiming this an expense provisions of section 36(1)(va) has to be complied with which says that
any sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee’s account in the relevant fund or funds on or before the due date.
Explanation.—For the purposes of this clause, “due date” means the date by which the assessee is required as an employer to credit an employee’s contribution to the employee’s account in the relevant fund under any Act, rule, order or notification issued thereunder or under any standing order, award, contract of service or otherwise;
so the combined reading of section 2(24)(x) and 36 (1)(va) provides that employees’ contribution towards various welfare schemes will be allowed expense only when this contribution is deposited with the concerned department on or before the due dates prescribed under the various provisions of respective Acts.
But for employers’ part of contribution section 43B of the Income Tax Act lays down different guideline regarding deduction of this expenses and relevant clause (b) is outlined here-in-below:-
43B. Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of—
(b) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, or
shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in section 28 of that previous year in which such sum is actually paid by him :
Provided that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return33.
From the discussions till now and on plain reading of provisions it is clear that employees’ contribution to various welfare schemes will be allowed as deduction only if the same is paid before the due date under respective Acts but in the case of Employers’ contribution section 43B provides that deduction will be allowed in the same previous year (despite delay in deposition from the dates under respective Acts) if the same is being deposited before the due date of filing of ITR.
Here starts the dispute between the assessee and the department. There are lots of cases wherein the courts has decided in favour of the department and it has been held that employees’ contribution to various welfare schemes will be allowed only if the payment is being made before the due dates under the respective Acts viz.,
Commissioner of Income Tax, Cochin vs Merchem Ltd. (2105) 378 ITR 443 (Kerala)
The same fact was again established by the department by issuing Circular No. 22/2015 vide File No. 279/Misc. 140/2015-ITJ issued on 17-12-2015 and the subject matter of the said circular is
Allowability of employer’s contribution to funds for the welfare of employees in terms of section 43B(b) of the Income Tax Act, 1961
and clause 5 of the said circular reads as follows: –
(5) It is clarified that this circular does not apply to claim of deduction relating to employee’s contribution to welfare funds which are governed by section 36(1)(va) of the IT Act, 1961.
But there are number of other cases wherein it has been held that deduction of Employees’ various welfare contributions will be allowed as expenses even if it is paid after the due date prescribed under the respective Acts but before the due dates provided u/s 43B, viz.
CIT vs Vinay Cement Ltd. (2007) 213 CTR 268 (Supreme Court)
CIT vs. AIMIL Ltd. (2010) 188 Taxmen 265 (Delhi)
CIT vs. SPL Industries Limited (2011) 9 Taxmen.com (195) Delhi
CIT vs. Kachha Sugar Co. Ltd. (2013) Uttarakhand
Recently on November 6, 2017 the ‘D’ bench of Delhi ITAT in the case of DCIT Gurugram vs Leaseforces Staffing India Pvt. Ltd. the bench held same view as has been held in the four cases mentioned above that deduction of Employees’ various welfare contributions will be allowed as expenses even if it is paid after the due date prescribed under the respective Acts but before the due dates provided u/s 43B, viz.
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