TMI Blog2022 (10) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bench of the Tribunal in the case of Kalpesh Synthetics (P) Ltd. [ 2022 (5) TMI 461 - ITAT MUMBAI] observed that the scope of prima facie disallowance u/s 143(1) of the Act is inherently very limited and only such disallowance can be made under this statutory provision as can be conclusively held to be inadmissible based on material on record. Appeal filed by the assessee is allowed. - ITA No. 92/Del/2022 - - - Dated:- 29-9-2022 - SHRI C. M. GARG , JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA , ACCOUNTANT MEMBER Assessee by : None Revenue by : Shri Ramdhan Meena , Sr. DR ORDER PER C. M. GARG , JM : This appeal filed by the assessee is directed against the order dated 16.11.2021 of the CIT(A)-30, New Delhi, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hearing the arguments of the ld. Sr. DR. Therefore, adjournment application is rejected and we proceed to adjudicate the appeal. 4. From the grounds raised by the assessee before the ld.CIT(A) as well as in Form No.36 before this Tribunal, we observe that the precise and sole grievance of the assessee is that the amendment to section 43B of the Income-tax Act, 1961 (for short, the Act ) is applicable from AY 2020-21 and, thus, the ld. First appellate authority has erred in not following the judgement of the Hon ble jurisdictional High Court of Delhi and other judgements/orders on this issue in favour of the assessee. It has also been contended that the ld.CIT(A) has confirmed the addition without allowing proper opportunity to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on made in PF and ESI if not made within the due date as prescribed by the respective statutes (PF and ESI Act). So after the amendment has been inserted according to Shri Miraj D Shah takes effect from 1 st April, 2021 i.e AY 202122 and subsequent assessment year and if the remittance of PF/ESI Employees Contribution is not made within the time prescribed by the PF/ESI Act then the remittance cannot be allowed as a deduction which is prospective in operati on. Whereas according to Ld. CIT(A), the amendment brought in is clarificatory in nature so, retrospective in operation. So we have to adjudicate this issue whether the amendment brought in by Finance Act, 2021 is prospective or retrospective in operation. We note that before this amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme court took note of the law laid down on this issue by the Constitution Bench in M/s Vatika Township Ltd. and held that the intent of the Parliament/legislature need to be looked into for ascertaining whether the amendment should be retrospective or not. In Vatika To wnship Ltd. (supra) the Hon ble Supreme Court held that the notes on clauses appended to the Finance Bill will throw light as to the legislative intent; because it has to be borne in mind that Parliament/legislature is aware of three concepts before an ame ndment is brought in, which can be discerned from reading of the Notes on Clauses to the Bill which are (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the binding decision of the Hon ble Jurisdictional Calcutta High Court o n this issue before us in Shri Vijayshree Ltd. Ltd.(supra), M/s Philips Carbon Black Ltd.(supra), M/s Coal India Ltd.(supra), M/s Akzo Nobel India Ltd. (supra), we set aside the impugned order of Ld CIT(A) and direct the AO to allow the claim of deduction in respect of employees contribution shares towards ESI, PF, by the assessee before the due date of filing of return u/s 139(1) of the Act. Therefore the appeal of assessee succeeds and so, it is allowed in favor of assessee . 4. A perusal of the above would reveal that the ITAT, Kolkata has specifically propounded that if employees contribution received by an assessee and paid to ESI and PF accounts before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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