TMI Blog2021 (12) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... n.Therefore, the issue is covered by the decision of the Hon ble Karnataka High Court. 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 vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing of return u/s.139(1) of the Act and hence has been considered allowable on the basis of decision of Supreme Court in CIT vs. Alom Extrusions Ltd (2009) 319 ITR 306 (SC) and other cases such as CIT Vs Magus Customers Dialog (P) Ltd (Kar), CIT Vs Sabri Enterprises (2008) 298 ITR 141 (Kar), Consultants India P Ltd Vs CIT Bangalore III (2013) 597/34 Taxman.com 20 (Kar) Essae Teraija (P) Ltd. Vs. DCIT (2014) 43 taxmann.com 33 (Karnataka). 4. The CIT(A) however upheld the order of the AO. With regard to employee s share of contribution to PF and ESI, the CIT(A) referred to the amendment made to section 36(1)(va) and 43B of the Act by the Finance Act, 2021. The Finance Act, 2021 has amended section 36, sub-section (1), in clause (va) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly 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 previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return. By virtue of insertion of Explanation 5 to this section, the provisions of the said section shall not apply and shall be deemed never to have been app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary intendment of deeming nature expressly stated therein. 7. In Assessment Year 2019-2020, the facts are identical except that the facts in that year, the only disputed addition is employee s share of contribution to PF and ESI and the addition made in this regard is a sum of ₹ 10,86,120. Otherwise, the discussion on the issue in the intimation under section 143(1) as well as the appellate order is identical. 8. Aggrieved by the orders of the CIT(A), the Assessee is in appeals before the Tribunal. I have heard the rival submissions. I find that identical issue has been dealt with in the following decisions in which it has been held that the amendment to the provisions of Sec.36(1)(va) and Sec.43B of the Act, by the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in both the Assessment Years deserves to be deleted. 10. The learned DR however submitted that if ultimately the Hon ble Supreme Court takes a view that even prior to amendment to Sec.43B and Sec.36(1)(va) of the Act, employees share of contribution which is beyond the due date prescribed under the respective law relating to PF and ESI contribution, cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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