TMI Blog2022 (1) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... the due date of filing of the return of income u/s 139(1). As the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment years under consideration - the employees contribution paid by the assessee before the due date of filing of return of income u/s 139(1) of the I.T.Act is an allowable deduction. Accordingly, we decide this issue in favour of the assessee - ITA No.551 to 552/Bang/2021 - - - Dated:- 9-12-2021 - Shri George George K, JM And Shri B.R.Baskaran, AM For the Appellant : Sri.Madhukeshwar Hegde, CA For the Respondent : Sri.Sankar Ganesh K, JCIT-DR ORDER PER BENCH : These appeals at the instance of the assessee are directed against two orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed payments were not added to the income in computation of income. 5. For these and such other grounds that may be urged at the time of hearing it is prayed that the addition made by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre be deleted, and the total income of the appellant be recomputed. 3. Brief facts of the case are as follows: For the assessment years 2018-2019 and 2019-2020, the returns of income were filed on 31st March, 2019 and 30th October, 2019, respectively, declaring income of ₹ 1,03,20,664 (for A.Y.2018-2019) and ₹ 83,85,700 (for A.Y.2019-2020). The assessee was served with intimation u/s 143(1) of the I.T.Act by assessing a sum of ₹ 2,45,53,790 (for A.Y.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive operation. 5. Aggrieved, assessee has filed these appeals before the Tribunal. The learned AR submitted that an identical issue was decided in favour of the assessee by the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DICT in ITA No.385/Bang/2021 (order dated 21.10.2021). 6. The learned Departmental Representative supported the orders of the Income Tax Authorities. 7. We have heard the rival submissions and perused the material on record. On identical facts, the Bangalore Bench of the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DCIT (supra) by following the dictum laid down by the Hon ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra) had held that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not made by the appellant in accordance with the provisions u/s 36[1][va] of the I.T.Act? 7.1 In deciding the above substantial question of law, the Hon'ble High Court rendered the following findings:- 20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided in sub para (1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act within fifteen days of the closure of every month pay. It is clear that the word contribution used in Clause (b) of Section 43B of the IT Act means the contribution of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution to ESI, if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36[1][va] and 43B of the I.T.Act, alters the position of law adversely to the assessee. Therefore, such amendment cannot be held to be retrospective in nature. Even otherwise, the amendment has been mentioned to be effective from 01.04.2021 and will apply for and from assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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