TMI Blog2022 (4) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... d be made u/s 36(1)(va) of the Act. Thus, no interference is called for in the finding of Ld. CIT(A) deleting the said disallowance. Appeal of assessee allowed. - I.T.A. Nos. 52, 15, 44 and 24/KOL/2022 - - - Dated:- 24-3-2022 - Rajpal Yadav, Vice President And Manish Borad, Member (A) For the Appellant : Siddharth Jhajharia, I. Banerjee and B.K. Poddar, FCAs For the Respondents : Biswanath Das, Addl. CIT ORDER Per Bench The present appeals are directed at the instance of the assessees against the orders of Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) Delhi dated 15.12.2021 (ITA No. 52/KOL/2022) passed for A.Y. 2017-18; dated 13.11.2021 (ITA No. 15/KOL/2022) for A.Y. 2017-18; dated 29.10.2021 (ITA No. 44/KOL/2022) for A.Y. 2018-19 and dated 15.11.2021 (ITA No. 24/KOL/2022) for A.Y. 2019-20. The common issue involved in all these appeals is whether the assessees are entitled for deduction of employees' contribution towards PF ESI paid before the due date of filling of the return. 2. The appeal in ITA No. 44/KOL/2022 is time-barred by 27 days. Shri Rajat Bagrodia, Director of the assessee-company has filed an affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time prescribed by the PF/ESI Act then the remittance cannot be allowed as a deduction which is prospective in operation. Whereas according to Ld. CIT(A), the amendment brought in is clarificatory in nature so, retrospective in operation. So we have to adjudicate this issue whether the amendment brought in by Finance Act, 2021 is prospective or retrospective in operation. We note that before this amendment has been inserted by Finance Bill, 2021, the Hon'ble Jurisdictional Calcutta High Court in the case of Shri Vijayshree Ltd. Ltd.(supra), M/s. Philips Carbon Black Ltd.(supra), M/s. Coal India Ltd.(supra), M/s. Akzo Nobel India Ltd. (supra) has held that the payment of employees' contribution if made by an assessee before the due date of filing of return of income u/s. 139(1) of the Act, is allowable as a deduction. We note that by Finance Act, 2021, the provision of Section 36(1)(va) as well as Section 43B has been amended to this extend by inserting the Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the due date under this clause. For ready reference, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court in Bharat Hotels Ltd. (supra) which was in favor of revenue has not considered the decision of the Co-ordinate Division Bench decision in M/s. Aimil Ltd. (supra) which is in favour of assessee. So we note that later decision of the Delhi/Hyderabad Tribunal have followed the decision favouring assessee in the light of the Hon'ble Supreme Court decision in M/s. Vegetable Products (supra). In the light of the aforesaid decision and relying on the ratio of the Hon'ble Supreme Court in the case of Vatika Township Pvt. Ltd. (supra) and M/s. Snowtex Investment Ltd. (supra) and also taking note of the binding decision of the Hon'ble Jurisdictional Calcutta High Court on this issue before us in Shri Vijayshree Ltd. Ltd.(supra), M/s. Philips Carbon Black Ltd. (supra), M/s. Coal India Ltd.(supra), M/s. Akzo Nobel India Ltd. (supra), we set aside the impugned order of Ld. CIT(A) and direct the AO to allow the claim of deduction in respect of employees contribution shares towards ESI, PF, by the assessee before the due date of filing of return u/s. 139(1) of the Act. Therefore the appeal of assessee succeeds and so, it is allowed in favor of assessee . 6. After exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITA No. 24/KOL/2022 is concerned, Grounds No. 1, 2 3 relate to the disallowance of employees' contribution to PF ESI at ₹ 37,39,972/-. Since the assessee has provided all the documents proving that the amount has been deposited before the due date of filing of the return of income, the said disallowance is deleted in view of our discussion made hereinabove after placing reliance on the decision of this Tribunal in the case of Lumino Industries Limited (supra). Thus Grounds No. 1, 2 3 of the assessee's appeal are allowed. 11. As far as Ground No. 4 is concerned, it relates to the disallowance under section 43B of the Act pertaining to employer's contribution to PF at ₹ 13,62,502/-, employer's contribution to ESI at ₹ 15,441/- and GST payable at ₹ 51,77,942/- and the total amount in dispute is ₹ 65,55,885/-. 12. Before us, Ld. counsel for the assessee submitted that there was an error in the original audit report filed by the tax auditor on 11.10.2019 and 'e' filed by the auditor on 31.10.2019. The alleged amount was deposited before the due date of filling of the return of income and the same was mentioned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 along with Annexure H of this report and it is certified that the alleged amount has been deposited before the due date of filing of the return of income and is thus allowable u/s. 43B of the Act. But since there was a mistake in the original audit report and revised report is unsigned, therefore, we in the interest of justice restore this issue to the file of the Assessing Officer before whom the assessee will provide the necessary documents to prove that the alleged amounts of ₹ 65,55,885/- has been deposited before the due date of filing of the return of income under section 139(1) of the Act and if the Assessing Officer is satisfied with these documents, then alleged disallowance will be uncalled for. Needless to mention the assessee shall be provided sufficient opportunity of being heard. Thus ground No. 4 of the assessee's appeal is allowed for statistical purposes. In the result, the appeal in ITA No. 24/KOL/2022 in the case of Prakash Road Lines Corporation Limited is partly allowed for statistical purposes. 16. To sum up, the appeals in ITA Nos. 52 44/KOL/2022 are allowed, ITA No. 15/KOL/2022 is partly allowed and ITA No. 24/KOL/2022 is partly allowed f ..... 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