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TMI Blog2022 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof is bad in law and on facts of the case, for want of jurisdiction, principal of natural justice and various other statutory reasons and hence, kindly be deleted. 3. The appellant prays your honour indulgence to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing." 3. The Registry has pointed out that the appeal of the assessee is barred by limitation by 21 days. The assessee moved an application for condonation of delay stating therein as under: "1. That in the aforesaid matter, the impugned order was passed by CIT(A) National Faceless Appeal Centre on 20.08.2021, which was received on 20.08.2021. Accordingly, the appeal was to be filed on/before 19.10.2021 however, the same has been filed on dated 09.11.2021. Thus, delay of 21 days has occurred. 2. In this connection, it is submitted that, the country has been going through the state of pandemic since 2020 and looking into that Hon'ble Supreme Court of India took suo-motu cognizance of the issue and vide order dated 23.03.2020, extended the period of limitations under any general law or any specific law by providing as under: (DPB 1-2) "It is hereby ordered that a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal has been filed on 09.11.2021, accordingly the appeal is within time of extended period of limitation as prescribed by Hon'ble Apex Court. Prayer: It is, therefore, humbly prayed that this application may kindly be allowed by condoning the delay, following the judgment of Hon'ble Supreme Court of India, in the interest of justice and oblige." During the course of hearing, the ld. Counsel for the assessee reiterated the contents of the aforesaid application and requested to condone the delay. 4. In her rival submissions, the ld. Sr.DR, although, opposed the condonaton of delay in filing the appeal by the assessee, however, could not controvert the aforesaid contention of the ld. Counsel for the assessee. 5. Having considered the submissions of both the parties and perused the material available on record. In the present case, it appears that delay due to spread of second wave of Covid-19 pandemic, was beyond the control of the assessee, therefore, the delay in filing the appeal belated is condoned and the appeal is admitted. 6. The only grievance of the assessee relates to the disallowance of Rs. 1,84,880/- made by the A.O. on account of late payments towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance this action of the Ld. CIT(A) for the simple reason that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon'ble High Court will apply and since this Explanation-5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon'ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon'ble Calcutta High Court has taken note of the Hon'ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon'ble Calcutta High Court's decision in Vijayshree Ltd. supra is reproduced as under: "This appeal is at the instance of the Revenue and is directed against an order dated 28th April, 2011 passed by the Income Tax Appellate Tribunal, "A" Bench, Kolkata in ITA No.1091/Kol/2010 relating to assessment year 2006-07 by which the Tribunal dismissed the appeal preferred by the Revenue against the order of CIT(A). The only issue involved in this appeal is as to whether the deletion of the addition by the AO on account of Employees Contribution to ESI and PF by inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, I hold that the impugned disallowance is not sustainable in view of all these latest developments even if the Revenue's case is supported by the following case law. (i) CIT vs. Merchem Ltd, [2015] 378 ITR 443(Ker) (ii) CIT vs. Gujarat State Road Transport Corporation (2014) 366 ITR 170 (Guj.) (iii) CIT vs. South India Corporation Ltd. (2000) 242 ITR 114 (Ker) (iv) CIT vs. GTN Textiles Ltd. (2004) 269 ITR 282 (Ker) (v) CIT vs. Jairam & Sons [2004] 269 ITR 285 (Ker) The impugned ESI/PF disallowance is directed to be deleted therefore." 10. On an identical issue, this Bench of the Tribunal vide order dated 12.8.2021 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause & would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 4,38,530/- so made by the CPC towards the delayed deposit of the employees's contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon'ble Rajasthan High Court. " 11. Since the facts of the present cases are identical to the facts involved in the aforesaid referred to cases, therefore respectfully following the earlier orders as referred to herein above of the different Benches of the ITAT, the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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