TMI Blog2022 (2) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA Nos. 158 & 159/CHD/2021 - - - Dated:- 12-1-2022 - SMT. DIVA SINGH, JUDICIAL MEMBER And SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER For the Appellant : Akshun Gupta, CA For the Respondents : Ashok Khanna, Addl. CIT ORDER Per Bench Both these appeals pertaining to 2018-19 and 2019-20 Assessment Years have been filed by the assessee wherein the correctness of the separate orders dated 25.05.2021 of ld. CIT(A) (NFAC i.e. National Faceless Appeal Centre) Delhi passed u/s. 250(6) of the Income Tax Act, 1961 is assailed on identical grounds. 2. The arguments of the parties remain identical in both the appeals. Accordingly, for the sake of completeness, the ground from ITA 158/CHD/2021 is reproduced hereunder: 1. That the worthy CIT, NFAC is not justified in confirming the addition in intimation order u/s. 143(1) by CPC of ₹ 3,17,275/-,(in ITA 159/CHD/2021=₹ 12,68,698/-) for deposit of employee's contribution towards Provident Fund and ESI after the due date specified under the respective Acts of PF and ESI. The amount of contribution has been deposited well before the filing of return of income. 3. The ld. AR inviting attention to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to the Finance Bill which has categorically and clearly spelled out that the Amendment will take effect from the First April 2021. Thus, the legal position thereon is well settled. The Co-ordinate Benches have consistently right from order dated 03.08.2021 of the Delhi Benches in Insta Exhibitions Pvt. Ltd. Vs Addl. CIT, New Delhi in ITA No. 6941/Del/2017 and Hyderabad Benches vide order dated 01.07.2021 in M/s. Crescent Roadways Pvt. Ltd. V Dy. CIT, Hyderabad in ITA No. 1952/Hyd./2018 have held that the amendments are prospective and not retrospective in nature. The reasoning has been addressed at length in the order dated 02.11.2021 in the case of Shri Sukhdev Singh, Mohali Vs ITO, Chandigarh in ITA 250/CHD/2021 wherein it was held: 4. We have heard the submissions and perused the material available on record. It is seen that the issue is no longer res-integra as the decision of the jurisdictional High Court amongst others has been followed by the ITAT Chandigarh Benches vide its order dated 01.07.2021 in the case of M/s. Jupiter Aqua Lines Pvt. Ltd. Vs DCIT ITA 83/CHD/2021 and order dated 04.10.2021 in the case of Ajay Piplani Vs Assistant Director of Income Tax, CPC, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative intent was/is to ensure that the amount paid is allowed as expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee's Provident Fund (EPD) and Employee's State Insurance Scheme (ESI) as deemed income of the employer under Section 2(24)(x) of the Act. It is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon'ble Supreme Court. Hence, in light of the latest decision in case of Pro Interactive Service (India) Pvt. Ltd., the issue is covered in favour of the assessee. Hence, Ground No. 1 is dismissed. 7. Further with respect to the argument of the learned departmental representative that amendment made with finance act 2021 wherein explanation 1 is added u/s. 36 (1) (va) of the act with effect from 1 April 2021, is applicable to the present case, we referred to the Notes on clauses at the time of introduction of the finance bill 2021 which says as Under:- Clause 8 of the Bill seeks to amend section 36 of the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effected by the Finance Act 2021 is applicable prospectively, reading from the Notes on Clauses at the time of introduction of the Finance Act, 2021, specifically stating the amendment being applicable in relation to assessment year 2021-22 and subsequent years. Accordingly, considering the factual backdrop of the present case and considering the amendments in Section 36(1)(va) as well as Section 43B carried out by Finance Act, 2021 and Memorandum explaining the provisions in Finance Bill, 2021 we hold that the impugned disallowance is not sustainable and is directed to be deleted. The appeal of the assessee is allowed. Said order was pronounced in the presence of the parties via Webex. (emphasis supplied) 5. Similar view has also been taken in order dated 02.11.2021 in the case of M/s. Czar Faucets Limited Chandigarh Vs DCIT, Bangalore in ITA 255/CHD/2021; in order dated 16.11.2021 in the case of Pooja Sarees, Ambala City in ITA No. 184/CHD/2021 and in order dated 16.11.2021 in the case of M/s. A.K. Creative Outsourcing Services Pvt. Ltd., Baddi in ITA No. 252/CHD/2021. The specific reasoning summing up the legal position on similar facts is extracted hereunder from M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onounced in the presence of the parties via Webex. (emphasis supplied) 6. We further find that the said view is supported by the consistent decisions of the jurisdictional High Court. Reference may be made to the decision of the jurisdictional High Court in the case of CIT Vs Hemla Embroidery Mills (P) Ltd. (2014) 366 ITR 167(P H). The jurisdictional High Court relying upon its own decision in the case of CIT Vs Rai Agro Industries 334 ITR 122 and considering the principle laid down by the Apex Court in the case of CIT Vs Alom Extrusions Ltd. 319 ITR 306 (S.C) has addressed the legal position. It need be clarified that the decision rendered was in the context of amendments carried out by way of Second Proviso to Section 43B which was omitted by Finance Act, 2003. This Amendment was held to be clarificatory and hence held would operate retrospectively. In the facts of the present case, Amendment by way of Explanation 2 to Section 36(va) and Explanation 5 to Section 43B by Finance Act, 2021 have been held to be having prospective effect which fact is clearly spelled out in the Notes to the Clauses appended to the Finance Bill bringing out the Amendments by the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
