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2022 (6) TMI 890 - AT - Income TaxLate deposit of PF/ESI - deposit of employees’ contributions qua PF & ESI after the due date as prescribed in the relevant Acts, however, before the due date of filing of return of income u/s.139(1) - Addition made following the amendment in 43B regarding Employees’ Contribution of Provident Fund, ESI or any other welfare fund under Finance Act 2021 - HELD THAT: - Admittedly there is plethora of judgments in favour of the Assessee’s contention and of the Revenue. The controversy with regard to divergent views of different High Courts, has been settled by the Hon'ble Apex Court in the case of CIT Vs. M/s. Vegetables Products Ltd. [1973 (1) TMI 1 - SUPREME COURT] by laying down the dictum ‘if two reasonable constructions of a taxing provision are possible that construction which favours the Assessee must be adopted.’ The issue under controversy travelled upto the Hon’ble Apex Court in the cases of Rajasthan State Beverages Ltd [2017 (7) TMI 1087 - SC ORDER], CIT Vs. Alom Extrusion Ltd [2009 (11) TMI 27 - SUPREME COURT], CIT Vs. Vinay Cement Ltd [2007 (3) TMI 346 - SC ORDER] clearly held the amount claimed on payment of PF and ESI if deposited on or before due date of filing of returns then the same cannot be disallowed u/s 43B or u/s 36(1)(va) of the Act. Coming to the amendments brought in by the Finance Act 2021 by inserting Explanation 2 in Section 36(1)(va) and 5 in section 43B ITAT including Hyderabad Bench in the case of Value Momentum Software Services Pvt. Ltd. [2021 (5) TMI 989 - ITAT HYDERABAD] have taken into consideration the identical issue qua applicability of the amendment to Sections 36(1)(va) and Section 43B of the Act, by inserting Explanations by the Finance Act, 2021 and clearly held that the amendment shall be applicable from 1st April, 2021 onwards . It is also relevant to note that the CBDT has also issued Memorandum of Explanation qua applicability of the amended provisions of Sections 36(1)(va) & 43B of the Act w.e.f. 1st April, 2021 and Assessment Year 2021-22 onwards, hence there is no doubt qua applicability of the amended provisions referred above, prospectively. The second aspect as considered by the ld. CIT(A) qua applicability of the amended provisions of Sections 36(1)(va) and 43B of the Act to the cases in hand, is also un-sustainable. - Decided in favour of assessee.
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