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2022 (4) TMI 665 - AT - Income TaxDisallowance made in respect of PF & ESI in respect employee’s contribution u/s. 36(1)(va) r.w.s. 2(24)(x) - assessee has not remitted the employees’ contribution on the due date as prescribed by the PF & ESI Act, the contribution made belatedly cannot be allowed - HELD THAT:- We find that the CIT(A) erred in referring to the Amendment brought in by Finance Act 2021 w.e.f. 01.04.2021 which inserted an Explanation to section 36(1)(va) and section 43B of the Act and erred in holding it as clarificatory and so, retrospective in nature. Whereas we note that it is only prospective in nature and cannot disturb the binding judicial precedents in favour of assessee. However, we find that any way this issue is no longer res integra as held by this Tribunal in the case of Lumino Industries Ltd. [2021 (11) TMI 926 - ITAT KOLKATA] wherein assessee’s favour view was taken by the Tribunal after holding that the amendment brought in by Finance Act, 2021 w.e.f 1.04.2021 is prospective in operation and so will be in force from AY 2021-22 onwards and not retrospective. AO to allow the deduction subject to verification as to whether the assessee has made the employee’s contribution before the due date of filing of return of income. If the employees’ contribution was deposited before the due date of filing of return of income, then the AO to allow the deduction in respect of employees’ contribution towards PF and ESI. Therefore, we set aside the orders of the authorities below and restore back the matter to the file of AO to act accordingly. Appeal of the assessee is allowed for statistical purposes.
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