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TMI Blog2021 (12) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal Centre (NFAC), Delhi for the Assessment Years 2018-19 & 2019-20 u/s. 250 of the Income Tax Act, 1961 (hereinafter referred as the 'the Act'). 2. The common fact emerging in all these appeals which remains undisputed at the end of all the parties is that there was a delay in depositing the employee's contribution towards PF/ESI but the same stands duly deposited before the due date of filing the return of income u/s 139(1) of the Act. In all these cases respective assessee(s) failed to get any relief by the Ld. CIT(A) and accordingly all are in appeals before this tribunal. 3. Common argument from the side of the respective Ld. Senior Counsel for the assessee(s) is that under the given facts the instant issue of this disallowance P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter clarification and ready reference the Explanations 2 and 5 inserted in sections 36(1)(va) and Section 43B of the Act respectively, are reproduced herein, which reads as under :- Section 36(1)(va)-"Explanation 2.-For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the "due date" under this clause." Section 43B- "Explanation 5.-For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of subclause (x) of clause (24) of section 2 applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn any distinction between the employee's and employer's share qua PF & ESI contributions. Admittedly there are no contrary judgements of the jurisdictional High Court against the assessee on the aspect under consideration hence, first determination of the Ld. CIT(A) qua non-applicability of the provisions of Section 43B of the Act to the employee's share qua PF & ESI, is unsustainable. 5.3 Now, coming to the second aspect/determination made by the CIT(A) to the effect that the amendment made in Section 36(1)(va) and 43B of the Act by Finance Act 2021 has to be considered as clarificatory in nature and having retrospective effects, therefore would be applicable to the previous assessment years as well. We may observe that various benche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Income Tax, in ITA No. 359/Bang/2021 observing as follows: "6. Aggrieved by the order of the CIT(A), the Assessee is in appeal before the Tribunal. We have heard the rival submissionis. We find that the issue raised in this appeal whether there could be disallowance of Employees share of ESI/PF paid belatedly as per the due dates laid down in the law relating to contribution of ESI/PF, if the same has nevertheless been paid on or before the due date for filing return of income u/s.139(1) of the Act, has been decided in favour of the Assessee in the following decisions, holding that there cannot be any such disallowance: M/s Mahadev Cold Storage vs Jurisdictional AO - ITA.No.41 & 42/Agra/2021 M/s Essae Teraoka (P.) Ltd vs DCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 8. We further find that the Coordinate Bench Hyderabad in the case of Value Momentum Software Services Pvt. Ltd. v. Dy. CIT in ITA No.2197/HYD/2017 order dated 19.05.2021 has also taken similar view along with dealing wth the amendment broght in the statute by the Finance Act, 2021 in Section 36(1)(va) effective from 01.04.2021 observing as follows: "5. Next comes the latter issue of Section 43B disallowance of Rs. 8,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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