In computation of income under the head Profits and gains of business or profession (PGBP), some of the expenses are allowed under Income Tax Act 1961 and can be claimed by the assessee only in the year in which the payment is actually made.
As per Section 43B
Notwithstanding anything contained in any other provision of this Act*, a deduction Sudame otherwise allowable under this Act in respect of—
a) any sum payable by the assessee by way of tax, duty, cess or fee, (by whatever name called, under any law for the time being in force);
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;
c) any sum payable as bonus or commission to employee for services rendered;
d) any sum payable by the assessee as interest on any loan or borrowing from any public financial institution or a State financial corporation or a State industrial investment corporation, in accordance with the terms and conditions of the agreement governing such loan or borrowing;
e) any sum payable by the assessee as interest on any loan or advances from a scheduled bank or (wef A.y 2018-19 from a co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank) in accordance with the terms and conditions of the agreement governing such loan or advances;
f) any sum payable by the assessee as an employer in lieu of any leave at the credit of his employee.
g) Any sum payable to Indian Railways for the use of railway Assets (wef A.y 2017-18)-Section 43B to include certain payments made to Railways
shall be allowed as deduction only in the previous year in which such sum is actually paid. This is irrespective of the previous year in which the liability to pay such sum was incurred by the assessee.
* ‘Notwithstanding anything contained in any other provisions of this act‘ denotes that section 43B overrides all the sections in Income Tax Act, 1961.
Exception- When deductible on accrual basis
The exception is applicable if the following three conditions are satisfied:
1. Assessee keeps books of accounts on mercantile basis
2. Payment in respect of aforesaid expenses is actually made on or before the due date of submission of return of income under sec 139(1)
3. The evidence of such payment is submitted along with return of income. However no annexure is possible with the new ITR forms. Such evidence should be maintained by the assessee and produced to Assessing officer as and when needed.
Overview Analysis of clauses
Clause (a)
It is of significance to remember that Sec 43B is applicable in case of tax, duty, cess or fee only when such items are paid under statute to pay under a particular law. This has been the most debatable issue and it is advised to refer most of the case laws which can solve this debate.
Clause (b)
Previously, Employer‘s contribution to various funds was allowed as deduction if the same was paid on or before the due date for making such contribution to the fund. Now these conditions have been deleted by Finance Act 2003 and such contributions are allowed as deductions if same has been deposited within the due date of filing return under sec 139(1).
It is worth noting that S.43B is applicable only to Employer‘s contribution and is not applicable to Employees‘ contribution.Employees’ PF/ ESI Contribution not covered by Section 43B
Then what about Employees‘ contribution?
Sec. 2(24)(x) states as under:
Income includes:
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 ;
other deductions :Sec 36(1)(va):
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;
Explanation: The reason why the employees‘ contribution is treated as income is because employer‘s contribution is debited to profit and loss account while employees‘ contribution is not debited to profit and loss account but is treated as liabilities and provisions. So, in simple words, for income tax act purpose, employees‘ contribution is treated as business income u/s 2(24)(x) and deduction is made from such income u/s 36(1)(va) if the contribution is paid within the due date of such contribution.
Section 43B and PF Contribution – Controversy snowballed
Clause (c)
It is worth noting that Sec 43B is applicable when bonus or commission is payable to employees only when some services are rendered by the employees. This means that there must be an establishment of Employer-Employee relationship between the employer and the employee. This item is referred in section 36(1)(ii). In other words if commission is paid to an agent, Sec 43B is not applicable as here there is an Agent-Principal relationship.
Clause (d) and Clause (e)
Previously certain courts held that if assessee is not able to pay interest on loans from institutions mentioned above, and as part of restructuring such institutions converts this interest into loan (such concept is known as Funded Interest Term Loan [FITL]), then it shall be deemed that such interest has been actually paid for the purpose of section 43B and deduction shall be allowed in the year in which such conversion is affected.
To nullify such practices, Section 43B was amended (vide Circular No 7/2006 dated 07-07- 2006 ) by Finance Act 2006 inserting therein two clarificatory Explanations namely; Explanation 3C and Explanation 3D the contents in simple words are as follow:
–If any sum payable by an assessee as interest on any loan is converted by the financial institution into a fresh loan, the interest so converted and not ‘actually paid‘, shall not be deemed as ‘actually payment‘
The converted interest (FITL) in wake of its conversion into a loan, will be eligible for deduction in the computation of income of the previous year in which the converted interest is ‘actually paid‘.
As per the provisions of Sales Tax Act, sales tax deferred under any incentive plan (and treated as loan) shall be deemed to have been actually paid so as to meet the requirements of sec 43B of the Income Tax Act
Conversion of outstanding interest liability into share capital is not hit by the provisions of section 43B.
(Republished with amendments)
The Company has debited Electricity Duty in FY 2018-19 and disallowed in the Income Tax Return u/s 43B, Now the company knows the said duty is exempt then can the Company get allowed in the Income Tax Return in the FY 2020-21
Dear sir/madam,
Whether professional tax payable is disallowed under section 43B
Is Liecnse fees for mining right covered u/s 43B?.
Whether employer contribution to Pension fund managed by L.I.C as per Actuary will come under provisions of section 43B of IT act?
Querry : – We have gone through the explanation and we want further guidance for following querry : –
1. If the Payment of Employees’ contribution to Prov.Fund etc…is made late by few days but before due date of filing return of income, whether the same is allowable or not ? Dept is required to give liberal interpretation for late payment and same is to be allowed or not under Income Tax Act,1961. If you have got any case law please quote the same.
Hi,
i have a question,
If a company management does not deduct tds on legal & professional fee, does this amount falls under
Section 43B, and does it required to be shown under not paid while filing tax audit of company?
Hello all,
I would like to ask one question.
If any company does not deduct the tax from his employees salary, and the employee resigns in the
middle Of the year what action does government
take against the company. Please let me know the
Clauses also.
Dear Tax Guru,
I am a full time consultant of a company wherein I can not take any other consultancy/ join other organizations. I am also given leave & entitled to leave encashment as per agreement of contract. I am suppose to give three month’s notice before leaving the company.
question is- am I suppose to pay service tax on leave encashment if any.
thanking you,
Dinesh
Dear Tax Guru,
During Scrutiny for FY 2012-13 , in my balance service tax , vat, PT was payable at time of filling return, which was paid by me with interest later on. but income tax office have made addition in income, U/S 43b as Taxes are not accounted as expenses. please give me way out, it is very dangerous situation for me.
Dear Tax Guru,
I am running Pvt Ltd co. in mumbai, During Scrutiny Income tax officer have add Service tax, Vat, PT liability in income, i am surprise as during accounting we do not claim expenses of taxes, is there any way out please let us known. it is added U/s 43 B
hi plz tell me what is last late audit of books gratuity under income tax act
hi i want to know wht is the last date of books audit gratuity under income tax
can audit fee payble paid to be deducted u/s 43b
Answers to your question will be available on prepayment
Is dis section applies in case of TDS deduction if I have deducted TDS.
we are paid sale tax payment (demand) for the fy 2008-09, 09-10, 10-11, 11-12 their order passed by A.O. in during the the period 13-14, but we have paid all the dues in f.y. 2014-15 and taken this in prop. capital expenditure, we are not claimed in profit in loss a/c, please tell us we are wrong or wright as per rull
Can municipal taxes paid be deducted under section 43B??
The assesse has not paid the service tax liablity upto the due date and hence it will be disallowed @ the time of computation of income.What about the intreset which is paid on late payment of ST.Whether such intreset payment is allowed as deduction while computing income ?
Hai
Please short note of Sec.43B
Hi ghanshyam
AS PER EPF ACT 1952 & RELATED CIRCULAR , EPF SHOULD BE DEPOSITED WITH IN 15 DAYS FROM THE DATE WHEN SALARY IS BEING DISBURS TO EMPLOYEE. FOR EXAMPLE IF SALARY OF MONTH APRIL IS GIVEN TO EMPLOYE IN THE MONTH OF MAY I.e 20MAY THEN EPF SHOULD BE DEPOSITED TILL 15 JUNE
HELLO, I WANTED TO KNOW THAT IF WE HAVE FILED A RETURN IN WHICH WE HAVE SHOWN VAT LIABILITY AS PAYABLE THEN WILL IT GET DISALLOWED U/S 43B.
Hello
I have a doubt that when a sales tax paid expense is disallowed , it is necessary to be allowed first then only it can be disalllowed . But in one of our client’s p/l its is not allowed then how can it be disallowed ? Please reply
Id entertainment Tax also covered?
Hi want to know that if debit the inventory-WIP rather debiting P&L with provision of Leave Encashment, provision for Gratuity, Depreciation then while calculating Tax liability, it is compulsory to add back as in our case we don’t have any income and if add back these items then there would be taxable income.
In my view when there is no income then we can’t generate income merely by adding above mentioned items as we didn’t debit those to P&L
If we add then it will pose problem in future with Income Tax department and Auditor as well when we will recognise revenue as per AS-7 as adopted by Real Estate industry.
Thanks
Atul
Any loan or amount received from Govt of India or from the state Govt, and no interest is paid to the Dept.
As per the section defaults made to any public financial institution or a State financial corporation or a State industrial investment corporation but Govt of India or the state does not come under the heads.
Will it be disallowed under section 43B(d).
Dear Tax Guru ,
I want to know if a company is paying salary late due to any reason . such as april month salary , company is paying it on 25th may & Pf & ESIC paying in within 15 days of payment of salary , Can a company take the benefit under 43b , whether this expences are allowable or disallowed.
Please reply or call on my cell 9922966893
Late payment of employees’ conmtribution is an allowable expense u/s 43B in view of SC judgement in case of v Vinay Cement Ltd (213 CTR 268) and followed in case of CIT Vs Aimil Ltd [2010-TIOL-125-HC-Del-IT]. Pl refer to Tax Guru article on the issue dtd. 20-03-2010.