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2022 (4) TMI 1570 - ITATJABALPURDelayed employee’s contribution to the employee welfare funds - same having been deposited beyond the due date specified in its respect u/s. 36(1)(va), even as the same stand deposited by the due date/s of filing the return of income u/s. 139(1) - adjustment under section 143(1) - scope of amendment - Retrospectivity - HELD THAT:- In the Tribunals’ decision in Nikhil Mohine [2021 (11) TMI 927 - ITAT JABALPUR] while confirming the Explanations under reference to be explanatory of the law, even as signified by the clear, unambiguous language employed therein, are yet stated to be prospective inasmuch as they are applicable assessment year 2021-22 onwards. The view recorded in the impugned order/s on the merits of the additions – even as the same agrees with that expressed by the Tribunal in Nikhil Mohine [supra] is of little consequence in view of the limited scope of an adjustment u/s. 143(1), the law on which is well-settled, with the Explanatory Notes to the Provisions of the Finance Bill, 2021 itself admitting of a conflict of judicial opinion, explaining that to be the reason for effecting the amendments per the said Explanations. The only circumstance justifying the impugned addition/s is a decision/s by the Hon’ble jurisdictional High Court No such decision, however, despite asking, stands brought to our notice by the parties, or otherwise found. The decision by the Hon’ble jurisdictional High Court in B.S. Patel v. Dy. CIT [2007 (11) TMI 373 - MADHYA PRADESH HIGH COURT] also noticed in Nikhil Mohine (supra), is not squarely on the point and, therefore, of no assistance to the Revenue. As regards the aspect of the retrospective nature of the Explanations under reference, we again find no difference in the view expressed in the impugned order/s, with that by the Tribunal in Nikhil Mohine (supra), i.e., per se. So, however, as afore-noted, the said Explanations themselves stand proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, with a view to, as explained, settle the controversy arising due to the contrary view expressed by some High Courts, for which reference may be made to para 5.4 of the Tribunal’s order (also refer paras 3.1 & 3.2 above). There is, accordingly, no question of the same being given a retrospective effect. There is, in view of the foregoing, no question of the said Explanations being read as retrospective, so as to apply for the relevant years, sustaining the impugned additions, which therefore fail. This is, however, subject to any decision/s by the Hon’ble jurisdictional High Court, which would, where so, hold, even justifying a rectification u/s. 154/254(2), and even where rendered after the date of the order sought to be rectified (Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT], CIT v. Aruna Luthra [2001 (8) TMI 84 - PUNJAB AND HARYANA HIGH COURT]. No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine (supra). Any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. The impugned additions, therefore, could not have been made under the given facts and circumstances of the case, and are directed for deletion. We decide accordingly.
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