TMI Blog2021 (12) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional High Court in the matter has been either cited before me, or found, which, where so, would, irrespective of the view expressed therein, hold for the relevant years, being prior to the year of applicability of the Explanations under reference. No adjustment, in view of the conflicting judicial opinion could, accordingly, be made to the returned income u/s. 143(1)/154, which sections admit only issues on which there could be conceivably no two views, rampant, irrespective of merits thereof, in the instant case, which aspect, as explained therein, has been given cognizance to in making the provision applicable not retrospectively. The assessee, accordingly, succeeds in his challenge to the impugned adjustments, which are held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to the assessee. The impugned additions, therefore, could not have been made under the given facts and circumstances of the case, and are directed for deletion. Assessee appeal allowed. - ITA No.39/JAB/2021 - - - Dated:- 20-12-2021 - Sh. Sanjay Arora, Hon'ble Accountant Member For the Appellant : Sh. Sukesh Kumar, FCA For the Respondent : Sh. S.K. Halder, Sr. DR ORDER PER SANJAY ARORA, AM This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi ( CIT(A) for short) dated 31/7/2021, partly allowing the assessee s appeal contesting the amendment under section 154 of the Income Tax Act, 1961 ( the Act hereinafter) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned income u/s. 143(1)(a) as the same stood deposited beyond the due date specified u/s. 36(1)(va), even as, admittedly, prior to the due date of filing the return of income u/s. 139(1) for the relevant year (PB pg. 16). Reliance stands placed by it on the decisions in CIT v. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj). The matter stands examined at length by the Tribunal in Nikhil Mohine (supra), relied upon by the appellant, wherein, noticing, inter alia , the cited decision, it held that in view of the cleavage of judicial opinion in the matter and the limited scope of an adjustment u/s. 143(1)(a), the same could not be decided on merits. The decisions by the Hon ble High Courts holding the employee s contri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions on the statute, as the amendments could otherwise have been effected through prospective clause/s to the relevant provisions. Rather, the tenor of the language employed, clearly giving the stated position a retrospective effect, necessarily requires the Explanations to be read as inserted from a later date. That is, the fact of insertion of the said Explanations w.e.f. a later date is consistent with the language giving it a retrospective effect and, thus, does not impinge adversely on it being regarded as so. Further still, noticing the settled legal position qua the test for determining retrospectivity, i.e., if the provision could be construed, without the aid of the subsequent amendment thereto, to take within its ambit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17/12/2015), as also that canvassed per the impugned order with reference to the cited decisions, both explaining, as did the Explanatory Notes on the insertion of s. 36(1)(va) on the statute, the object of the said provision. It is this view, which in fact, as also noticed by the Tribunal, represented the uniform view across all the Hon ble Courts prior to the deletion of the second proviso to s. 43B by Finance Act, 2003, w.e.f. 01/4/2004, and which the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein with that by the Tribunal in Nikhil Mohine (supra), i.e., per se . So, however, as afore-noted, the said Explanations themselves had been proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, with a view to, as explained, settle the controversy arising due to the contrary view expressed by some High Courts, for which reference may be made to para 5.4 of the Tribunal s order (also refer paras 3.1 3.2 above). There is, accordingly, no question of the same being given a retrospective effect. 4.2 There is, in view of the foregoing, no question of the said Explanations being read as retrospective, so as to apply for the relevant year, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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