TMI Blog2021 (10) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of return u/s 139(1). - Decided in favour of assessee. - ITA No.315/Bang/2021 - - - Dated:- 12-10-2021 - SHRI GEORGE GEORGE K, JM AND SHRI B.R.BASKARAN, AM For the Appellant : Sri.V.Srinivasan, Advocate For the Respondent : Sri.K.Sankar Ganesh, JCIT-DR ORDER Per George George K, JM This appeal at the instance of the assessee is directed against CIT(A) s order dated 28.06.2021. The relevant assessment year is 2018-2019. 2. The grounds raised read as follows:- 1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned Commissioner of Income tax [Appeals] 1 Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciated that the aforesaid amendments by the Finance Act, 2021 cannot be regarded as retrospective in nature as they were not in the nature of a beneficial legislation to remove intended hardships cast on the assessee and therefore, the disallowance sustained on this basis is opposed to law and facts of the appellant's case. 4.2 The learned CIT[A] 1 NFAC is not justified in refusing the follow the binding judgement of the Hon'ble Jurisdictional High Court of Karnataka in favour of the assessee on the ground that the said judgment was rendered before the aforesaid clarificatory amendments made under the facts and in the circumstances of the appellant's case. 5. Without prejudice to the right to seek waiver with the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon ble jurisdictional High Court Essae Teraoka (P.) Ltd. v. DCIT reported in 366 ITR 408 (Kar.), the assessee is entitled to deduction of the same. The CIT(A), however, dismissed the appeal of the assessee. The CIT(A) noticed the difference between the employees contribution and the employer s contribution and held insofar as the employees contribution to ESI and PF, the same need to be remitted within the due date as mentioned in the respective Acts. The CIT(A) also relied on the amendment brought about to section 36(1)(va) and 43B of the I.T.Act. 5. Aggrieved, the assessee has filed this appeal before the Tribunal. The learned AR submitted that an identical issue was decided in favour of the assessee by the Tribunal in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was justified in affirming the finding of Assessing Officer in denying the appellant s claim of deductions of the employees contribution to PF/ESI alleging that the payment was not made by the appellant in accordance with the provisions u/s 36(1)(va) of the I.T.Act? 7.1 In deciding the above substantial question of law, the Hon ble High Court rendered the following findings:- 20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided in sub para (1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is for the removal of doubts cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees contribution of PF and ESI if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36(1)(va) and 43B of the I.T.Act, alters the position of law adversely to the assessee. Therefore, such amendment cannot be held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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