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Showing 181 to 200 of 16576 Records
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2021 (12) TMI 1349
Late filing fee under section 234E - liability to pay late fee for non filing of any statement of tax deduction at source - scope of provisions of section 200A(1)(e) - HELD THAT:- As brought to our attention the decision in M/s.Sarala Memorial Hospital v. Union of India and Another [2018 (12) TMI 1818 - KERALA HIGH COURT] wherein an identical question arose for consideration. After considering the statutory provisions and the implications of the amendment brought in to the Act, it was held that the amendment would take effect only with effect from 1st June, 2015 and is thus prospective in nature. It is submitted that the aforesaid judgment has become final and is binding upon the authorities.
In view of the above, the demand in Ext.P1 for the period from 2011-12 to the first quarter of 2015-16 is bereft of authority and cannot be legally sustainable.
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2021 (12) TMI 1348
Assessment u/s 153A - Undisclosed/Unexplained income - withdrawal shown in the seized documents belonging to the partners in their personal capacity or firm - whether withdrawals in the name of the partners of the firm represents the unaccounted income of the firm? - whether these documents belong to the assessee? - HELD THAT:- We find that the seized document was containing the name of the firm and the partners which was duly dated & signed by all of them along with the witnesses.
Thus, it appears that the firm is the owner of the documents and thus it is safe to infer that the document in question belongs to the assessee as envisaged under section 153C of the Act.
Withdrawal shown in the seized documents represents the amount belonging to the partners in their personal capacity - Onus lies upon the assessee to prove that the transactions shown in the seized paper do not represent the true contents.
On examination of the seized document, we note that it was duly signed and dated not only by all the partners but also by three witnesses. The name of the partnership firm along with partners was appearing. It was discernible from the seized document that there was withdrawal of money from the partnership firm. Generally, the withdrawal from the firm represents the withdrawal of the capital by the partners. This capital can either be in the form of money contributed by the partner or maybe the share of profit/remuneration/interest on the capital of the partner generated from the partnership firm. Likewise, all these transactions should have been duly recorded in the books of accounts of the firm as well as in the individual ledger of the partners maintained by the firm. But, on perusal of the financial statement of the firm and the capital account of the partners, we note that such figures are not appearing herein. The necessary details of the financial statement of the assessee and capital account of the partners. Thus, we find difficult to believe the version of the assessee that the impugned withdrawal represents the settlement of the partners account in their individual capacity.
Addition was not made solely on the basis of the statement recorded in the course of search of Shri Lialchand Patel the father-in-law of Shri Himanshu Patel one of the partner of the firm. Therefore, it is not necessary to provide the opportunity of cross examination to the assessee of statement as discussed above.
As there is nothing brought on record that such amount of transactions were recorded in the books of accounts of the individual partners we find that the assessee has not brought anything on record even in the present proceedings which is the 2nd innings. The assessee cannot escape from its liability in discharging the onus cast upon it under the provisions of law in the garb of the matter sub-judice in the court of law. In view of the above, we are of the opinion that the assessee failed to discharge its onus imposed under the provisions of law by furnishing the necessary documentary evidence. Thus, in such facts and circumstances, we are constrained and have no alternative except to confirm the order of the authorities below. Hence the ground of appeal of the assessee is dismissed.
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2021 (12) TMI 1347
Rectification u/s 254 - challenging the validity of selecting the case of the assessee under compulsory scrutiny based on incomplete survey dated 06.01.2021 - AO has initiated the compulsory scrutiny without any prior approval of the competent authority and therefore, the question arises whether the initiation of the compulsory scrutiny by the Assessing Officer is in accordance with the criteria prescribed by the CBDT or not? - HELD THAT:- It is settled proposition of law that the scope and jurisdiction of this Tribunal under section 254(2) is very limited and circumscribed to rectify a mistake apparent from record. Therefore, the Tribunal cannot review its own order in the proceedings under section 254(2). The case law relied upon by the DR on this point are binding and there is no quarrel on this issue however, the failure to consider an important fact or contention raised during the hearing would certainly be a mistake apparent from record as the said relevant fact is likely to effect the decision on an issue.
Non consideration of such a crucial and relevant fact and point out which is going to influence the decision is an apparent mistake from record requires to be rectified under section 254(2) - DR has also relied upon the various decisions on the point that the assessee has not raised any objection regarding jurisdiction of the AO during the assessment proceedings and therefore cannot be permitted to raise this issue. It is pertinent to note that those decisions are only on the issue of jurisdiction of the AO to assess the assessee and not on the validity of the initiation of compulsory scrutiny. Therefore, even if the AO is having jurisdiction to assess the assessee, he may not have the authority to initiate the compulsory scrutiny if the prescribed criteria for such selection of compulsory scrutiny are not satisfied. Hence the decision relied upon by the learned DR on the jurisdiction of the AO are not relevant for the issue under consideration. As there is an apparent mistake in the impugned order and particularly while deciding the additional issue which goes to the root of the matter then, in the facts and circumstances of the case and in the interest of justice, the impugned order dated 21st October, 2021 of this Tribunal is recalled for deciding the appeal of the assessee afresh. Mis application allowed.
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2021 (12) TMI 1346
Violation of principles of natural justice - auction of goods under seizure and confiscation - HELD THAT:- Respondent No.2-Appellate Authority has clearly committed grave and serious error of law in coming to the conclusion that an opportunity was not required to be given before passing the impugned orders, to say the least, this approach of respondent No.2 – Appellate Authority is clearly opposed and contrary to the principles of natural justice and the impugned order deserves to be quashed on this ground alone.
The petition is hereby allowed.
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2021 (12) TMI 1345
Seeking grant of Regular Bail - evasion of tax - interim bail granted earlier, which wee not misutilised - HELD THAT:- Considering the fact that the petitioner has been on interim bail from 21st December, 2020 and there has been no misuse of concession of the interim bail granted to him and the respondent is likely to take more time to file the complaint before the competent Court, the petitioner is directed to be released on regular bail on his furnishing personal bond in the sum of ₹1,00,000/- with two sureties of the like amount subject to the satisfaction of the learned Trial Court / Duty Magistrate concerned; further subject to the conditions that the petitioner will join the investigation as and when directed by the respondent and will not leave the country without prior permission of the learned Trial Court and in case of change of residential address and/ or mobile number of the petitioner, the same will be intimated to the Court concerned by way of an affidavit.
Petition disposed off.
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2021 (12) TMI 1344
Maintainability of application - Appellant submits that although the parties have settled in the matter, the RP is not cooperating in the matter - HELD THAT:- Issue Notice. Requisite along with process fee, if not filed, be filed within three days. If the Appellant provides e-mail address of the Respondents, let notice be also issued through e-mail.
List on 7th February, 2022.
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2021 (12) TMI 1343
Seeking permission of the Adjudicating Authority to settle the matter - HELD THAT:- Issue Notice. Notice is accepted by Mr. Gautam Singhal, Advocate on behalf of Respondent No. 1. Ms. Shalya Agarwal, Advocate accepts notice on behalf of Respondent No. 2. No further notice needs to be issued on any of the Respondent.
List the Appeal on 11th January, 2022.
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2021 (12) TMI 1342
Dishonor of Cheque - applicability of doctrine of merger - amicable settlement of the dispute - compounding of offences - Section 147 of NI Act - power to review/recall own order/judgment - HELD THAT:- In Gulab Singh case [2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT], this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court - it was held in the case that doctrine of merger does not apply in the case of dismissal of SLP.
In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the Hon’ble Supreme Court.
Whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to compound the offence while exercising power under Section 147 of the Act or not? - HELD THAT:- Bare perusal of Section 147 of the Act, reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), every offence punishable under this Act, shall be compoundable. Section 147 of the Act is in the nature of an enabling provision which provides for the compounding of offence prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub section (a) of Section 320 of the Code of Criminal Procedure, which otherwise state that “no offence shall be compounded except as provided by this section”, since section 147 was inserted by way of an amendment to a special law, the same will override the effect of sub section (a) of section 320 of the Code of Criminal procedure.
As per provisions of law judgment/order once singed cannot be altered or reviewed except to correct the clerical or arithmetical error, but expression used in the aforesaid provision of law i.e. “save as otherwise provided by this code or by any other law for the time being in force”, enables this Court to consider the prayer made on behalf of the accused for compounding the offence while exercising power under Section 147 of the Act. As has been observed hereinabove, section 147 empowers court to compound every offence punishable under this Act notwithstanding anything contained in the code of criminal procedure.
Hon’ble Apex Court in Damodar S. Prabhu versus Sayed Babalal H [2010 (5) TMI 380 - SUPREME COURT] has categorically held that offence punishable under Section 138 of the Act can be compounded even in those cases where accused stands already convicted.
Since accused after dismissal of her SLP in limini has agreed to make the entire payment of compensation awarded by Court below to the complainant and thereafter she has approached this Court in the instant proceedings, praying therein to compound the offence in terms of Section 147 of the Act, there appears to be no impediment in compounding the offence alleged to have been committed under Section 138 of the Act while exercising power under section 147 of the Act - this Court holds that review application filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 12.9.2019, passed by this Court in Criminal Revision, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them.
Application disposed off.
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2021 (12) TMI 1341
Maintainability of application - initiation of CIRP - Principal borrower failed to repay the principal amount along with interest - Financial Creditors - account classified as NPA - existence of debt and dispute or not - HELD THAT:- It is considered fit, to adopt the view taken in State Bank of India vs. Athena Energy Ventures Private Limited, [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] case wherein, it was clearly held that in the matter of guarantee, CIRP can proceed against the Principal Borrower as well as the Guarantor. The Hon'ble NCLAT had held in that matter that the law as laid down by the Hon'ble High Courts for the respective jurisdictions, and law as laid down by Hon'ble Supreme Court for the whole country is binding.
The Hon'ble NCLAT further held that in the matter of Piramal [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], the Bench of this Appellate Tribunal "interpreted" the law. It was held that ordinarily, " we would respect and adopt the interpretation but for the reasons discussed above, we are unable to interpret the law in the manner it was interpreted in the matter of Piramal".
The present petition against the Corporate Debtor herein which is a Guarantor as well, is admitted - the petition is admitted and CIRP in respect of the Guarantor is initiated - moratorium declared.
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2021 (12) TMI 1340
Proceedings initiated u/s 276C(2) - main contention before this Court that the amount has already been paid. Therefore, there cannot be any prosecution - HELD THAT:- These are all factual aspects which cannot be gone into at this stage. It is the matter for evidence before the trial Court. At this stage, learned counsel for the petitioner submitted that compounding petition is pending before the authority and the authority has to take decision immediately. Be that as it may. If the compound petition is pending before the authority, the authority shall act as per law and take decision within a period of two months from the date of receipt of copy of this Order. In such a view of the matter the Criminal Original Petition is liable to be dismissed.
As far as the trial is concerned, the presence of the Petitioner is dispensed with except for receiving copies, answering the charges and questioning under Section 313 Cr.P.C. or any other date that may be fixed by the trial court.
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2021 (12) TMI 1339
Seizure of export consignments - nut, bolts, washer, hand tools, etc. - duty drawback scheme - over-weighed goods - proper classification of goods not done - to be classified under 7308 or under 7318 of CTA - HELD THAT:- In the instant case, the grievance on the part of the petitioners is that the Order-in-Original does not recognize the issue of limitation although the same being the settled law. Here the petitioners have exported the articles from Mundra Port and had claimed that drawback and benefit under the Focus Product Scheme (FPS). The allegation has been that it had indulged in misuse of drawback scheme and FPS and other exports incentives by way of making export of scaffolding items falling under CTH No.7308 by placing under CTH Nos.731816000, 39235010, 39269099 and 82057000 with the allegation of export of less quantity of goods than what was declared and over valuing of the export products. After the proper officer had allowed the export to be made, the DRI has initiated the action.
Admittedly, the export of goods covered under shipping Bill Nos.6982047 and 6982039 both dated 01.01.2015 and export goods covered under shipping Bill Nos.6998694 and 6997757 both dated 02.01.2015 had been seized carrying out the panchnama dated 08.01.2015. The DRI had allegedly noticed the shortage of 3205 Kg and 2990 Kg than what had been declared in the shipping bills. The goods were detained pending the inquiry and were handed over for safe custody. After the seizure of the goods as per Section 110 of the Customs Act, the DRI, Ahmedabad wrote a letter to the Joint/Additional Commissioner of Customs for giving ‘No Objection’ for provisional release of seized goods - On execution of bond of 100% FOB value of goods along with 25% security in the form of Bank Guarantee, the same had been permitted.
The show cause notice is issued by the authority for the shipping bills from the years 2011 to 2015. The list of shipping bills has been given & barring a very few shipping bills which have been submitted here duty drawback has been paid to the petitioner for numerous shipping bills from 2011 to 2014 long before and therefore, any show cause notice issued after a period of three years from the date when drawback came to be paid, cannot be sustained. This is also one serious breach deserving indulgence. In relation to most of the shipping bills, duty drawbacks have been paid where this decision would come to the rescue of the petitioner.
The proper officer who assesses the shipping bills will be in a position to reopen the same provided that there is such a stage of reopening the shipping bill filed once are self assessed, that would attain finality upon the proper officer clearing the same. Had there been any discrepancy, the proper officer would not consider the self assessment final and would obviously assess the shipping bill before finalizing - In the instant case, the shipping bills had been finally assessed and the assessment had attained finality. The aggrieved party having any issue on the classification would need to approach the appellate authority instead of reopening the assessment by issuing the show cause notice. The appeal appears to have become time barred as averred by the petitioners, the show cause notice is on account of the misclassification.
The initiation of the action on the part of the DRI on an intelligence of is severally questioned when the proper officer has already held in favour of the assessee classifying the item of export under a different head - Even without touching the ratio laid down in case of M/s.Cannon India Private Limited [2021 (3) TMI 384 - SUPREME COURT] as this decision came recently, on non consideration of the ground of limitation also, interference is desirable.
The action of the respondent authority of issuance of the SCN dated 09.02.2018 is interfered with. The SCN in the present form is quashed and set aside - Petition allowed in part.
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2021 (12) TMI 1338
Rectification of Mistake - error apparent on the face of record or not - HELD THAT:- The applicant is referring to one of the Bills-of-Entry filed by M/s. Honeywell International India Pvt. Ltd., but it is found that there are multiple Bills-of-Entry placed on record, based on which a finding is arrived at. A single Bill-of-Entry cannot, therefore, decide the issue, especially in the facts of this case and on the documentary evidences placed on record in this case.
There are no error in finding that the Bills-of-Entry of other importers are irrelevant since, the same cannot be held to be conclusive proof to decide the appellant’s case. Moreover, there is no dispute as regards the description contained in the other Bills-of-Entry, which are different, as observed in the impugned Final Order. It is made clear that the finding is based on the contents of the documents placed and not just one bill of entry or the classification, per se. The impugned Final order cannot be re-visited under the guise of rectification of errors, since the same amounts to review which is not permitted.
The errors, if any, as pointed out, would not materially affect the findings arrived at in the impugned Final Order and therefore, there are no merits in the appellant’s application for rectification of mistake.
The application for rectification of mistake is rejected.
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2021 (12) TMI 1337
Delayed payments of employees contribution to ESI and PF by invoking the provisions of section 36(1)(va) - addition on the basis of the amendment effected by the Finance Act, 2021, to section 43B of the Act by insertion of Explanation-5 and to section 36(1)(va) of the Act by insertion of Explanation-2 - HELD THAT:- This issue has been dealt with and adjudicated by the ITAT in a number of cases, consistently ruling in favour of the assessee, holding that the amendment to section 43B of the Act by insertion of Explanation-5 and to section 36(l)(va) of the Act by insertion of Explanation-2, by the Finance Act 2021 is prospective and the issue otherwise stands decided by the jurisdictional high court in favour of the assessee
As decided in AJAY PIPLANI, VERSUS THE ASSISTANT DIRECTOR OF INCOME TAX, BENGALURU [2021 (10) TMI 1280 - ITAT] that the claim of employees contribution to ESI and PF as per section 36 (1) (va) of the Act cannot be denied in the impugned year, i. e. 2019 - 20 on the basis of amendment made to the section by Finance Act 2021. The order of the Ld. CIT(A) upholding the said disallowance to the is therefore set aside and the AO is directed to allow the claim of the assessee. Also see M/S JUPITER AQUA LINES PVT. LTD. VERSUS THE D.C.I.T., CIRCLE-6 (1) , MOHALI. [2021 (11) TMI 761 - ITAT CHANDIGARH] - Decided in favour of assessee.
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2021 (12) TMI 1336
Delayed payments of employees contribution to ESI and PF by invoking the provisions of section 36(1)(va) - Scope of amendment - HELD THAT:- This issue has been dealt with and adjudicated by the ITAT in a number of cases, consistently ruling in favour of the assessee, holding that the amendment to section 43B of the Act by insertion of Explanation-5 and to section 36(l)(va) of the Act by insertion of Explanation-2, by the Finance Act 2021 is prospective and the issue otherwise stands decided by the jurisdictional high court in favour of the assessee.
As decided in AJAY PIPLANI, VERSUS THE ASSISTANT DIRECTOR OF INCOME TAX, BENGALURU [2021 (10) TMI 1280 - ITAT] that the claim of employees contribution to ESI and PF as per section 36 (1) (va) of the Act cannot be denied in the impugned year, i. e. 2019 - 20 on the basis of amendment made to the section by Finance Act 2021. The order of the Ld. CIT(A) upholding the said disallowance to the is therefore set aside and the AO is directed to allow the claim of the assessee. Also see M/S JUPITER AQUA LINES PVT. LTD. VERSUS THE D.C.I.T., CIRCLE-6 (1) , MOHALI. [2021 (11) TMI 761 - ITAT CHANDIGARH] - Decided in favour of assessee.
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2021 (12) TMI 1335
Deemed dividend u/s 2(22)(e) - transactions of loans/advances are made through journal entries even when the loans/advances were reflected in the balance sheets of the respective companies - HELD THAT:- On appraisal of the mentioned finding, we noticed that the CIT(A) has directed the AO to verify the ledger account of M/s. WWIL/EIL in the books of six related group of companies and re-compute the amount of deemed dividend u/s 2(22)(e) after excluding the amounts related to journal entries and considering only those amounts wherein actual payments have been made/received. We nowhere found these directions as illegal or against law and facts. The facts are not distinguishable at this stage. Moreover, we noticed that the issue has duly been covered by the decision of the Hon’ble ITAT in the assessee’s own case for the A.Y. 2007-08 & 2009-10 [2021 (8) TMI 894 - ITAT MUMBAI]
Therefore, taking into account of all the facts and circumstances, we are of the view that the CIT(A) has passed the order judiciously and correctly which is not liable to be interfered with at this appellate stage. Accordingly, we affirm the finding of the CIT(A) on this issue and decide these issues in favour of the assessee against the revenue.
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2021 (12) TMI 1334
Approval of Resolution Plan - section 30(6) read with section 31(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Plan defines "Effective Date" as the date on which the Adjudicating Authority approves the Resolution Plan. Under the Resolution Plan, payments towards the CIRP Cost, Operational Creditors and the Financial Creditors would be made within 90 days from the approval of the plan from the Adjudicating Authority. Page 84 of the Application The Resolution Professional states that the 100% CoC member (AARC) had voted in favour of the Plan and has accepted this proposal in the sixth CoC Meeting.
It is found that the Resolution Plan has been approved with 100% voting share. As per the CoC, the Plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the Plan effective after approval by this Bench - the Resolution Plan is in accordance with sections 30 and 31 of the Code and also complies with regulations 37, 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. No circumstances exist that militate against grant of approval for the Resolution Plan.
The Resolution plan is approved - application allowed.
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2021 (12) TMI 1333
Cancellation of interim anticipatory bail granted - Section 70 of Central Goods and Services Tax Act, 2017 - HELD THAT:- Let the matter be listed on 06.1.2022 as fresh. Till the next date, in the event of arrest of the applicant Rajat Maheshwari, in pursuance of summoning order dated 02.11.2021, under Section 70, Central Goods and Services Tax Act, 2017, P.S. Central G.S.T. Commissioner, Meerut, he shall be released on interim anticipatory bail on his furnishing a personal bond of ₹ 5,00,000/- with two sureties each in the like amount to the satisfaction of the concerned Officer of Central Goods and Services Tax Act, with the conditions imposed.
In default of any of the conditions, the concerned Officer of Central Goods and Services Tax Act is at liberty to file appropriate application for cancellation of interim anticipatory bail granted to the applicant.
Application allowed.
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2021 (12) TMI 1332
Employees’ share of contribution to ESI to the extent not paid on or before the due date as mentioned in Sec 36(1)(va) - HELD THAT:- Hon’ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) [2014 (3) TMI 386 - KARNATAKA HIGH COURT] has taken the view that employee’s contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee’s share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon’ble Karnataka High Court.
In this case there is no dispute that the assessee made payment of the Employees share of PF/ESI on or before the due date for filing return of income for AY 2017-18 u/s.139(1) of the Act. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also.
We find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act, deserves to be deleted. Appeal of assessee allowed.
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2021 (12) TMI 1331
Disallowing the late deposit of employee’s contribution towards ESI and EPF - contribution though the same was deposited before the due date of filing of return of income under section 139 - amendment by Finance Act, 2021 in Section 36(1)(va) and Section 43B - HELD THAT:- There is no dispute that prior to the amendment by Finance Act, 2021 in Section 36(1)(va), Section 43B, the issue of allowability of the employee’s contribution deposited belatedly as per the due date of the respective Acts however, before the due of filling of return of income under Section 139(1) is covered by the decisions of Hon'ble jurisdictional High Court as well other High Courts. The Hon'ble Jurisdictional High Court in the case of Sagun Foundry Private Limited [2016 (12) TMI 1479 - ALLAHABAD HIGH COURT] decided this issue in favour of the assessee.
Revenue has not disputed the fact that the Employee’s contribution towards EPF and ESI was deposited by the assessee before the due date of return of income u/s 139(1) which was extended by the CBDT upto 31st October, 2018. Therefore, the claim of assessee is allowed.
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2021 (12) TMI 1330
The High Court of Bombay dismissed the Interim Application upon counsel for the Applicants' motion for withdrawal. Mr. Sujay Kantawala represented the Applicant, Mr. H.S. Venegavkar represented CBI, and Mrs. Rutuja Ambekar represented the Respondent/State.
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