TMI Blog2021 (12) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... additions made in both the years are liable to be deleted. Accordingly, we set aside the orders passed by Ld CIT(A) in both the years under consideration and direct the AO to delete the impugned additions in both the years - Decided in favour of assessee. - ITA Nos.596 And 597/Bang/2021 - - - Dated:- 13-12-2021 - Shri B.R Baskaran, Accountant Member And Shri Beena Pillai, Judicial Member For the Assessee : Shri Prakash Hegde, C.A For the Revenue : Shri Srinath Sadanala, Addl.CIT (DR) ORDER PER BENCH:- The assessee has filed these two appeals challenging the orders passed by Ld CIT(A), National Faceless Appeals Centre and they relate to the assessment years 2017-18 and 2019-20. The assessee is aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We heard the parties and perused the record. We notice that an identical issue has been examined by the co-ordinate bench in the case of Shri Gopalakrishna Aswini Kumar vs. ACIT (ITA No.359/Bang/2021 dated 13-10-2021), wherein the co-ordinate bench has expressed the view that the amendment made to sec.36(1)(va) of the Act will have prospective application and hence the decision rendered by Hon ble jurisdictional Karnataka High Court in the case of M/s Essae Teraoka (P.) Ltd vs DCIT - [2014] 43 taxmann.com 33 (Karnataka). The relevant portion of the order passed by the Tribunal, in the case of Shri Gopalakrishna Aswini Kumar (supra), are extracted below:- 3. Aggrieved by the aforesaid addition made to the total income of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in section 28 of that previous year, in which such sum is actually paid by him. Proviso to the said section provides that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. The CIT(A) in this regard referred to the decision of the Hon'ble Gujarat High Court in CIT v. Gujarat State Road ITA No.359/Bang/2021 Transport Corpn. [2014] 41 taxmann.com 100/ 366 ITR 170/223 Taxman 398 (Guj.) wherein the aforesaid distinction has been accepted 5. The CIT(A), thereafter held that the amendment to section 36(1)(va) by insertion of explanation 2 and the amendment to section 43B by insertion to explanation 5 by the Finance Bill 2021 was only declaratory / clarificatory in nature and there therefore was applicable with retrospective effect by necessary intendment of deeming nature expressly stated therein. The CIT(A) finally dismissed the appeal of the Assessee. 6. Aggrieved by the order of the CIT(A), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Karnataka High Court. 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. On this aspect, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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