Taxontips
No Result
View All Result
Wednesday, February 1, 2023
  • Home
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST Registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
Talk to an Expert
  • Home
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST Registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
No Result
View All Result
Taxontips
No Result
View All Result

Constitutional validity of Leave encashment u/s 43B of the Income Tax act – Landmark Supreme Court Judgement

Income tax Expert by Income tax Expert
April 26, 2020 - Updated on April 28, 2020
in Case Laws, Income Tax News
0
Supreme Court up-helds judgement of Rajasthan High court for extension of due date for GSTR 9/ 9C
132
SHARES
1.6k
VIEWS
image_pdfPDFimage_printPrint

This judgement was announced in case of Union of India v. Exide Industries Ltd. (116 taxmann.com 378) Dt 24.04.2020 wherein Hon’ble Supreme court rejected respondent’s claim where it was challenging the constitutional validity of including leave encashment u/s 43B and was of the view that leave encashment was not any statutory liability or any other liability created for the welfare of employees and hence should not be covered under this section.

Also the contention of respondent was supported by decision of the High Court at Calcutta (For short, “the High Court”) vide order dated 27.06.2007 in APO No. 301 of 2005, wherein it is held that the said clause is arbitrary and violative of Article 14 of the Constitution of India on various counts.

According to the respondents, the exception under Section 43B comes into operation only in a limited set of cases covering statutory liabilities like tax, duty, cess etc. and other liabilities created for the welfare of employees and therefore, the liability under the leave encashment scheme being a trading liability cannot be subjected to the exception under Section 43B of the 1961 Act.

It is the case of the respondents that the judgment of this Court in Bharat Earth Movers v. Commissioner of Income Tax, Karnataka [2000] 6 SCC 645 holds the field of law as far as the nature of the liability of leave encashment is concerned. The said judgment, while dealing with the principles of accounting under Section 37, conclusively holds that if a business liability has arisen definitely, deduction may be claimed against the same in the previous year in which such liability has accrued, even if it has not been finally discharged. The Court further held that the liability in lieu of leave encashment scheme is a present and definite liability and not a contingent liability. As regards the nature of the leave encashment liability, the respondents urge that this liability is carved in the nature of a beneficial provision and leave can only be encashed by the employees in accordance with the terms and conditions of employment. It is further contended that since the due date for encashment of leave does not arise in the same accounting year in which provision is made, there is no question of subjecting the deductions against such liability upon actual payment.

Having stated that all the clauses under Section 43B, barring clause (f), cover liabilities of a statutory nature and those driven by concerns of employees’ welfare, the respondents would urge that the liability covered by clause (f) is of a completely distinct nature and without specifying clear objects and reasons for the inclusion of this liability under Section 43B, it cannot be slipped into the main section. Further, the nature of this liability is neither in sync with the objects and reasons of the original section nor with those of other clauses enacted from time to time in different assessment years.

Hon’ble Supreme Court’s observation:

Section 43B, however, is enacted to provide for deductions to be availed by the assessee in lieu of liabilities accruing in previous year without making actual payment to discharge the same. It is not a provision to place any embargo upon the autonomy of the assessee in adopting a particular method of accounting, nor deprives the assessee of any lawful deduction. Instead, it merely operates as an additional condition for the availment of deduction qua the specified head.

Section 43B bears heading “certain deductions to be only on actual payment”. It opens with a non obstante clause. As per settled principles of interpretation, a non obstante clause assumes an overriding character against any other provision of general application. It declares that within the sphere allotted to it by the Parliament, it shall not be controlled or overridden by any other provision unless specifically provided for. Out of the allowable deductions, the legislature consciously earmarked certain deductions from time to time and included them in the ambit of Section 43B so as to subject such deductions to conditionality of actual payment. Such conditionality may have the inevitable effect of being different from the theme of mercantile system of accounting on accrual of liability basis qua the specific head of deduction covered therein and not to other heads. But that is a matter for the legislature and its wisdom in doing so.

With the passage of time, the legislature inserted more deductions to Section 43B including cess, bonus or commission payable by employer, interest on loans payable to financial institutions, scheduled banks etc., payment in lieu of leave encashment by the employer and repayment of dues to the railways. Thus understood, there is no oneness or uniformity in the nature of deductions included in Section 43B. It holds no merit to urge that this section only provides for deductions concerning statutory liabilities. Section 43B is a mix bag and new and dissimilar entries have been inserted therein from time to time to cater to different fiscal scenarios, which are best determined by the government of the day.

The leave encashment scheme envisages the payment of a certain amount to the employees in lieu of their unused paid leaves in a year. The nature of this payment is beneficial and pro-employee. However, it is not in the form of a bounty and forms a part of the conditions of service of the employee. An employer seeking deduction from tax liability in advance, in the name of discharging the liability of leave encashment, without actually extending such payment to the employee as and when the time for payment arises may lead to abhorrent consequences. When time for such payment arises upon retirement (or otherwise) of the employee, an employer may simply refuse to pay. Consequently, the innocent employee will be entangled in litigation in the evening of his/her life for claiming a hard-earned right without any fault on his part. Concomitantly, it would entail in double benefit to the employer – advance deduction from tax liability without any burden of actual payment and refusal to pay as and when occasion arises. It is this mischief clause (f) seeks to subjugate.

At the outset, we observe that both the grounds are ill-founded. In the basic scheme of Section 43B, there is no direct or indirect limitation upon the power of legislature to include only particular type of deductions in the ambit of Section 43B. To say that Section 43B is restricted to deductions of a statutory nature would be nothing short of reading the provision in a purely imaginative manner.

Accordingly, the impugned judgment of the Division Bench of the High Court is reversed and clause (f) in Section 43B of the 1961 Act is held to be constitutionally valid and operative for all purposes.

To download full judgement CLICK HERE.

 

This article is just for information purpose it is always advisable to hire a professional for practical execution. If you need assistance you can ask a question to our expert and get the answer within an hour or post a comment about your views on the post and also subscribe to our newsletter for latest weekly updates.

image_pdfPDFimage_printPrint
Tags: case laws
Previous Post

Exemption/ deduction u/s 54F can also availed if amount is deposited in CGAS before filing of return u/s 139(4)

Next Post

CBDT denies news of report prepared by 50 IRS to combat the effect of Covid - 19 | Suggest 40% tax on super rich | Fact check

Related Posts

Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-
Income Tax News

CBDT instructs Income tax officer to complete 148/ 147 assessment before 31.05.2023

January 30, 2023
Penalty for Non filing or Late filing of Tax audit report – Section 271B and condonation in filing Tax Audit report
Income Tax News

Consequences of Accepting cash while selling a Immovable property, land or house | 100% Penalty

January 26, 2023
GST registration
GST news

Clarification regarding GST rates and classification of certain goods based on the recommendations of the GST Council in its 48th meeting held on 17th December, 2022

January 19, 2023
No TDS on interest income upto Rs. 40,000 from bank – Section 194A Limit revised
Income Tax News

E-mail from TRACES to deductors explaining the e-verification scheme. What to do?

January 18, 2023
Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-
Income Tax News

Limit of SFT reporting in case of interest removed by Income Tax Department

January 13, 2023
Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-
Income Tax News

Provisions related to Set off of losses under various heads of Income during the year in Income Tax Act

January 10, 2023 - Updated on January 11, 2023
Next Post
CBDT denies news of report prepared by 50 IRS to combat the effect of Covid – 19 | Suggest 40% tax on super rich | Fact check

CBDT denies news of report prepared by 50 IRS to combat the effect of Covid - 19 | Suggest 40% tax on super rich | Fact check

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Google Custom search

Recent Posts

  • CBDT instructs Income tax officer to complete 148/ 147 assessment before 31.05.2023
  • Final stage of Union Budget 2023-24 commences with Halwa Ceremony
  • Clarification on entitlement of ITC where place of supply is determined in terms of proviso to sub-section (8) of section 12 of the IGST Act
  • Consequences of Accepting cash while selling a Immovable property, land or house | 100% Penalty
  • How many articles can a Chartered Accountant register for articleship?

Recent Comments

  • CBDT instructs Income tax officer to complete 148/ 147 assessment before 31.05.2023 - Taxontips on Instructions issued by CBDT in response to judgement passed by Hon’ble Supreme court in case of notice issued u/s 148 after 01.04.2021
  • CBDT instructs Income tax officer to complete 148/ 147 assessment before 31.05.2023 - Taxontips on Supreme court Judgement on controversial issue of notice u/s 148 issued after 01.04.2021 passed in favor of Revenue | Detailed analysis of full judgement
  • Final stage of Union Budget 2023-24 commences with Halwa Ceremony - Taxontips on What is ‘Halwa ceremony’, performed before the budget at Ministry of Finance? What does it signify? | Pre budget facts
  • Leonard Linton on Clarification for the purposes of Section 269ST of the I.T. Act in respect of dealership/distributorship contract in case of Co-operative Societies
  • Advisory on facility of ‘Initiating Drop Proceedings’ of Suspended GSTINs due to Non-filing of Returns - Update - Taxontips on Advisory on “Initiating Drop Proceeding” by taxpayers for non-filing of GST returns

Categories

  • Budget News
  • Business & Other News
  • Case Laws
  • GST news
  • Income Tax News
  • News

Browse Topics by Date

February 2023
M T W T F S S
 12345
6789101112
13141516171819
20212223242526
2728  
« Jan    
  • GSTR 9/ 9C due date to be extended to 31.10.2020 | E-invoicing will be voluntary in the beginning 79.3k views
  • How to pay Membership and COP fees of ICAI for 2020-21 | 77.8k views
  • Code/ Nature of payment 6CR updated by NSDL in challan 281 for paying TCS on sale of goods 68.1k views

Recent Notification

Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-

CBDT instructs Income tax officer to complete 148/ 147 assessment before 31.05.2023

January 30, 2023
Final stage of Union Budget 2023-24 commences with Halwa Ceremony

Final stage of Union Budget 2023-24 commences with Halwa Ceremony

January 28, 2023

RSS Taxontips

  • CBDT instructs Income tax officer to complete 148/ 147 assessment before 31.05.2023
  • Final stage of Union Budget 2023-24 commences with Halwa Ceremony
  • Clarification on entitlement of ITC where place of supply is determined in terms of proviso to sub-section (8) of section 12 of the IGST Act
  • Consequences of Accepting cash while selling a Immovable property, land or house | 100% Penalty
  • How many articles can a Chartered Accountant register for articleship?
  • Advisory on facility of ‘Initiating Drop Proceedings’ of Suspended GSTINs due to Non-filing of Returns – Update
  • ICAI has launched free task management or practice management software for members in Practice
  • Clarification regarding the treatment of statutory dues under GST law [Read circular]
  • Clarifications regarding applicability of GST on certain services based on 48th GST council meeting
  • Clarification regarding GST rates and classification of certain goods based on the recommendations of the GST Council in its 48th meeting held on 17th December, 2022

Categories

  • Budget News
  • Business & Other News
  • Case Laws
  • GST news
  • Income Tax News
  • News

Site menu

  • Home
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST Registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
Taxontips

TaxOnTips provides you all tax related solutions in easy way and update you with its regular updates & notifications Visit us for details.
We are based in Jaipur, India

© 2019-2021 Taxontips.com - Tax assistance at your Fingertips

No Result
View All Result
  • Login/Signup
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
  • Ask an expert/ Talk to an expert
  • Privacy Policy
  • Terms of use

© 2019-2021 Taxontips.com - Tax assistance at your Fingertips

Login to your account below

Forgotten Password? Sign Up

Fill the forms bellow to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
Book Phone consultation with expert

Sitting home or at your office and don't have time to visit CA's office or don't know where to consult CA. Book your consultation with an expert practicing Chartered Accountant and get your query solved.

Book a phone consultation for 30 minutes with our expert at a very basic cost.

Book consultation

No thanks, I'm not interested!

ITR 1 to 7 now available for FY 2021-22!!File your ITR with an experienced Chartered Accountant

Now File your Income Tax return for F.Y. 2021-22 with an Experienced Practicing Chartered Accountant and not just with any person like other websites offer. Return filing starts at Rs. 500/-

Book ITR filing with Expert

Never see this message again.

Subscribe for Latest Tax Updates
You name
Yourname@email.com

Never see this message again.