TMI Blog2022 (3) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... e in complete agreement with the Ld. AR that disallowing the same amount in two assessment years i.e. 2017-18 and 2018-19 has resulted in taxing the impugned amount twice. Since this amount has already been disallowed and taxes paid on the same in assessment year 2017-18, the same should not have been disallowed in the year under consideration in the present appeal. Accordingly, we direct the deletion of this amount also. - ITA No. 382/CHD/2021 - - - Dated:- 15-2-2022 - N.K. Saini, Vice President And Sudhanshu Srivastava, Member (J) For the Appellant : Neeraj Jain, CA For the Respondents : Ranjeet Kaur, CIT-DR ORDER Per Sudhanshu Srivastava , Judicial Member This appeal is preferred by the assessee against the order dated 07.10.2021 passed by the Commissioner of Income Tax (Appeals)-3, Gurgaon [hereinafter referred to as 'CIT(A)'] for assessment year 2018-10. 2. There are two issues which have been raised by the assessee in this regard. The first issue is regarding adjustment made to the return of income filed by the assessee in the intimation u/s. 143(1) of the Income Tax Act, 1961 (in short 'the Act') amounting to ₹ 3,06,536/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that the due date for payment of employers' contribution prescribed u/s. 43B of the Act before the due date of filing of return of income u/s. 139(1) of the Act, would not apply to the allowability of employees contribution as per section 36(1)(va) of the Act. For the purpose of allowability of employees contribution to ESI and PF u/s. 36(1)(va) of the Act, the same is to be paid by the due date specified in the respective Acts. The impugned assessment year before us is well before the amendment was brought on the Statute i.e. assessment year 2019-20. The contention of the Ld. Counsel for the assessee was that the issue under consideration is squarely covered vide common order dated 20/10/2021 passed by the ITAT, Chandigarh Bench in ITA Nos. 191 192/Chd/2021 for the assessment years 2017-18 2018-19 in the case of Raja Ram Vs. ITO, Yamunanagar and in the case of Sanchi Management Services Private Limited Vs. ITO, Chandigarh in ITA No. 190/Chd/2021 for the A.Y. 2018-19. 3.1. Regarding the second issue, the Ld. AR submitted that an amount of ₹ 23,128/- being employer's share of ESI/PF for 2017-18, which had not been deposited before filing of return of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, which read as under;- 4. We have heard both the parties and perused the record. First of all we do not countenance 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's and revenue's stand is that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively. I notice in this factual backdrop 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 foregoing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon'ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions 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 ₹ 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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