Understanding Section 43B(h) of the Income Tax Act in Ensuring Prompt Payments to MSMEs

Section 43B(h)

Section 43B of the Income Tax Act of 1961 would have a new clause (h) inserted by the Finance bill of 2023. The aforementioned clause, which has been implemented through micro and small businesses, would have been included as a socio-economic welfare measure to ensure on-time payments. The Act’s Section 43B allows for certain deductions to be made on actual payments. The Finance Bill 2023 would have added a new clause to this section that would read as follows:

Section 43B (h)

Any amount that the assessee owes to a MICRO or SMALL enterprise after the deadline set forth in Micro, Small and Medium Enterprises Development Act, 2006, Section 15.

The aforementioned phrase indicates that in order to qualify for the claim reduction of the amount payable to be given to the micro and small firms, the payment must be made within the time frame established in Section 15 of the Micro, Small, and Medium firms Development Act, 2006.

Section 15 Deadline in MSME Act

According to Section 15 of the MSME Development Act of 2006, if a supplier provides any goods or services to a buyer, the buyer must pay the supplier on or before the date that the two parties have agreed upon in writing, or on the designated day in the absence of such an agreement.

With the caveat that the time frame agreed upon in writing by the buyer and supplier may never be longer than 45 days from the acceptance date or the day of considered acceptance.

The buyer will make the payment as per the agreement between the supplier and the buyer. However, the buyer cannot defer payment for longer than 45 days from the acceptance date, also known as the day of considered acceptance, which is the day the goods or services are accepted.

Consequences of Non-compliance with Section 15 Timeframe for MSME Payments

The buyer will be subject to penalties under the new Finance Bill 2023 clause (h) of Section 43B, as well as compensatory interest obligations under Section 16 of the MSME Development Act, 2006, and will be considered an ineligible business expense if they are unable to pay the supplier of goods or services as a company registered as a micro or small enterprise.

(i) Equitable to the Interest:

Regardless of anything stated in it, the buyer is responsible for filing the compound interest with the monthly rests on that amount from the appointed day to the supplier, or if it is from the date immediately following the date agreed upon, at three times the bank’s rate circulated through the Reserve Bank, if any purchaser would be unable to perform the payment of the amount to the supplier as needed under section 15. The RBI repo rate as of is the RBI-notified bank rate for the same topic.

(ii) Outlawing Interest Payments to MSMEs in Exchange for Compensation:

For the Income Tax Act of 1961’s computation, the interest due amount or paid through any buyer under the provisions of Section 23 of the MSME Development Act, 2006, would not be allowed as a deduction.

(iii) Disallowance for Expenses:

Any amount due from the taxpayer for the expenses incurred or the payment for purchases made to the supplier registered as a micro or small firm will not be permitted if the supplier fails to make the payment within the allotted time frame as stated in MSME Development Act, 2006, referenced above, Section 15.

Identification Procedure for Communities under Section 43B(h)

The condition would only apply to the amount owed to the Micro & Small Businesses. Therefore, the amount that must be paid to the Medium Enterprise is eligible for deduction on an accrual basis.

Definition of Enterprise According to MSME Development Act, 2006:

An enterprise, referred to by any name, is a business concern, industrial undertaking, or establishment engaged in the manufacture or production of goods related to industries listed in the First Schedule to the Industries (Development and Regulation) Act, 1951. It can also be involved in providing or rendering any service.

Types of Enterprises as Per MSME Development Act, 2006:

The Central Government has the authority to classify various types of enterprises, including proprietorships, Hindu undivided families, associations of persons, cooperative societies, partnership firms, companies, or undertakings, as micro, small, or medium enterprises. This section overrides Section 11B of the Industries (Development and Regulation) Act, 1951.

Section 43B(h)

The classification of enterprises into Micro, Small, and Medium categories, as outlined in the Micro, Small and Medium Enterprises Development Act, 2006, is provided below for your reference:

Micro Enterprise:
    • Investments below Rs. 1 crore
    • Turnover less than Rs. 5 crore
Small Enterprise:
    • Investments below Rs. 10 crore
    • Turnover less than Rs. 50 crore
Medium Enterprise:
    • Investments below Rs. 20 crore
    • Turnover less than Rs. 100 crore

It is advised for business entities to obtain an annual declaration from their respective suppliers, indicating their classification as micro or small enterprises registered under the Micro, Small and Medium Enterprises Development Act, 2006. This ensures compliance and facilitates purchasers in identifying the enterprise. Micro and small enterprises are encouraged to include a note on their invoices stating their enrollment under the MSME Development Act, 2006, for the convenience of purchasers in understanding compliance requirements.

Commencement Date of New Clause (h) under Section 43B

Starting April 1, 2024, clause (h) of Section 43B becomes effective. This provision mandates the inclusion of any outstanding amounts payable to micro and small enterprises, left unpaid beyond the specified duration in Section 15 of the Micro, Small and Medium Enterprises Development Act, 2006, into the income calculation under Section 28 of the Income Tax Act, 1961.

Assessment of Section 43B(h) Impact on the MSME Sector

The introduction of clause (h) in Section 43B of the Income Tax Act, 1961 has sparked debates. This clause, applicable from the Assessment Year 2023-24 onwards, pertains to expenses incurred on purchasing goods or services from Micro and Small Enterprises starting April 1, 2023. The definition includes industrial undertakings, business entities engaged in the manufacture or production of goods related to specific industries, or those providing services.

To qualify for deductions, payments must be made within 15 or 45 days, as specified in Section 15 of the MSMED Act 2006. Small enterprises must have investments not exceeding 1 Crore and turnover not exceeding 5 Crores, while medium enterprises should have investments not exceeding 10 Crores and turnover not exceeding 50 Crores. Enterprises involved in trading are excluded.

Despite the specified timeframe, deductions are allowed even if payments are made beyond the stipulated days within the same year, subject to the payment of compounded interest at a rate of 19.5%, which might be deemed high compared to the prevailing RBLR of 6.5%. The interest is considered penal in nature and raises questions about the possibility of waiver.


Applicability to All Taxpayers

This provision is seen to apply universally to all taxpayers, extending beyond manufacturers or industries to include professionals who acquire goods or services from MSMEs.

Udyam Registration and Section 43B(h) Benefits

A Chartered Accountancy firm with Udyam Registration can leverage the advantages offered by Section 43B(h). This enables the firm to prompt clients, including Banks and Government enterprises, to settle bills within the specified 15-day period.

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