The Supreme Court declined to hear a petition filed by traders’ associations challenging the constitutionality of Section 43B(H) of the Income Tax Act, which mandates businesses to clear dues owed to micro, small, and medium enterprises (MSMEs) within 45 days to avail tax benefits.
Instead, a bench headed by Chief Justice DY Chandrachud advised the petitioners – Federation of All India Vyapar Mandal, Federation of Madras Merchants and Manufacturers Association, and Confederation of West Bengal Trade Associations – to seek relief from the high court.
The provision came into effect on April 1. The Federation of All India Vyapar Mandal challenged the constitutionality of Section 43B(H), highlighting its adverse impact on the business community, especially MSMEs like textile, chemical, and engineering units based in Gujarat.
The traders’ body sought a review of the provision due to its negative implications on MSMEs, arguing that it unfairly favors medium-scale industries by granting them more leeway in extending credit, thereby causing MSMEs to lose market share. Traders also alleged that the amendment unfairly penalized small enterprises by restricting their ability to offer credit based on their discretion.
The petition further pointed out that large companies were redirecting their orders away from MSMEs registered under the Micro, Small, and Medium Enterprises Development Act, 2006, opting instead to place them with unregistered entities to evade mandatory provisions and maintain longer payment cycles of 90-120 days.
To address working capital shortages and ensure timely payments within the sector, the Finance Act 2023 introduced an amendment to the Income Tax Act by adding clause (h) to Section 43B. This clause mandates that buyers settle outstanding payments owed to MSMEs within 45 days to qualify for tax deductions. Failure to comply results in disqualification from tax benefits until the dues are settled.
In cases of delayed payments to MSMEs, the buyer is liable to pay tax on the overdue amount, which can only be reversed upon clearing the dues to MSMEs. Additionally, interest on the overdue amount accrues at the bank rate notified by the Reserve Bank of India, applicable from the appointed day or an agreed date.