TMI Blog2022 (2) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. Therefore, 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. By following the binding decision of the Hon ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra), 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 - Decided in favour of assessee. - ITA No. 727/Bang/2021 - - - Dated:- 8-2-2022 - SHRI N. V. VASUDEVAN , VICE PRESIDENT AND SHRI B. R. BASKARAN , ACCOUNTANT MEMBER For the Appellant : Sandeep Chalapa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (va), by inserting Explanation-2 which reads thus: 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;'. The finance Act, 2021 also amended section 43B by inserting Explantion-5 thereto which reads thus: 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 sub-clause (x) of clause (24) of section 2 applies. According to the CIT(A), by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 applies. 5. The CIT(A) was of the view that Section 36(1)(va) and section 43B(b) operate on totally different footings and have different parameters for due dates, i.e., employee's contribution is linked to payment before the due dates specified in the respective Acts or Funds and employer's contribution is linked to the payment before the prescribed due date for filing of return u/s. 139(1) Income Tax Act, 1961. The result of any failure to pay within the prescribed dates also leads to different results. In the case of employee's contribution, any failure to pay within the prescribed due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Jain vs ITO - ITA NO 4192/MUM/2012 Value Momentum Software Services Private Limited vs. DCIT I.T.A. No. 2197/HYD/2017 [Assessment Year: 2013-14] dated 19.05.2021 Mohan Ram Chaudhary vs. ITO ITA No. 51 54-55/Jodh/2021 [Assessment Year: 2018-19] dated 28.09.2021 8. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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