TMI Blog2021 (12) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered after the date of the order sought to be rectified. See SAURASHTRA KUTCH STOCK EXCHANGE LTD [ 2008 (9) TMI 11 - SUPREME COURT] and SMT. ARUNA LUTHRA. [ 2001 (8) TMI 84 - PUNJAB AND HARYANA HIGH COURT] No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine [ 2021 (11) TMI 927 - ITAT JABALPUR] Any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. the impugned additions, therefore, could not have been made under the given facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, stated that the said adjustment could therefore only be qua matters which admit of no two views, i.e., that are not contentious, even as stands held by, he would add, the Hon'ble jurisdictional High Court in CIT v. Shikarchand Jain [2003] 263 ITR 221 (MP) and CIT v. GEI Engineering Ltd. [2009] 310 ITR 112 (MP). The said adjustment, the Tribunal opined, could therefore hold only where the newly inserted Explanations to section 36(1)(va) and s. 43B, i.e., by Finance Act, 2021, were retrospective in nature. It then proceeded to examine the said Explanations in detail, and concluded the same to have a prospective effect, so that they would apply for AY 2021-22 and subsequent years. No adjustment for AY 2018-19, he concluded, could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions by the Hon'ble High Courts holding the employee's contribution as being covered by s. 43B(b), implying, in context, u/s. 37(1) r/w s. 43B, which were aplenty (see PB pgs. 25-42), it opined, could be validated only by disregarding the clear language of the relevant provisions, upheld constitutionally and not read down. The said decisions must nevertheless be respected, and no adjustment contrary thereto could be made u/s. 143(1); there being no decision by the Hon'ble jurisdictional High Court in the matter. The only manner, therefore, available for the Revenue to effect an adjustment u/s. 143(1)/154, is where the Explanations to section 36(1)(va) and s. 43B(b) inserted by Finance Act, 2021, which attempt to resolve the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent amendment thereto, to take within its ambit the said amendment, the issue was also examined by the Tribunal on merits, i.e., for the said limited purpose, to find that the view canvassed by or on the assessee's behalf could be sustained only by ignoring the existence of s. 36(1)(va) - which governs the deductibility of the employees' contribution to the employee welfare funds, on the statute-book - clearly, an impermissibility. Another fundamental infirmity in the assessee's argument is in regarding the employee's contribution, deemed by the legal fiction of s. 2(24)(x) as the assessee-employer's income, as an expense deductible u/s. 37(1), which could be so only where it is not recoverable - an impossibility, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. 3.2. The said Explanations, the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The amendments by way of Explanation 5 to s. 43B and Explanation 2 to s. 36(1)(va), it concluded, are to therefore take effect only from AY 2021-22, and which view is unmistakable on a plain reading of the said documents. Decision 4.1. The impugned order is completely silent on, and there is no reference therein either to the said Explanations or if th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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