TMI Blog2022 (4) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 22/11/2021 of the Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi. 2. Following grounds have been raised in this appeal. 1. The impugned order u/s. 250 dated 22.11.2021 passed by CIT(A), NFAC, Delhi is opposed to law, facts and circumstances of the case. 2. The order passed u/s. 250 of Income Tax Act, 1961 by the CIT(A), NFAC, Delhi is against law and facts on the file in as much as Hon'ble CIT(A) has confirmed the disallowance made u/s. 36(1)(va) vide intimation u/s. 143(1) dated 29.02.2020. As per the latest amendment made by Finance Bill 2021 in the section 36(1)(va) of Income Tax Act, the amendment is made w.e.f. 01.04.2021 (A.Y. 2021-22) and is not applicable to A.Y. 2020-21 and submission of the assessee in this regard has been ignored by Hon'ble CIT(A) and hence, it is prayed that the order of Hon'ble CIT(A) be set aside and appropriate relief may kindly be granted to the assessee. 3. The Appellant craves leave to add, alter, amend and delete any of the grounds at the time of hearing. 3. The only grievance of the assessee relates to the disallowance of ₹ 356390/- made by the A.O. on account of late payments towards EPF and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar issue has been decided vide order dated 16.7.2021 by the ITAT 'B' Bench, Kolkata. The Relevant findings have been given in para 4 of the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 2 of the said order read as under:- 2. Coming to the sole substantive issue of ESI/PF disallowance of ₹ 1,09,343/- and ₹ 3,52,622/-, the 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was 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, further more 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 inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court but has decided to follow the decisions rendered by the Hon'ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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