TMI Blog2022 (4) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee before the due date of filing of return u/s 139( 1) Considering the uncontroverted factual matrix on record about the deposit of the contributions before the due date of filing of return u/s. 139(1) of the Act and respectfully following the above decision of the Hon ble Jurisdictional High Court, the disallowance made by the ld.AO and confirmed by the ld. CIT(A) is hereby deleted. Grounds raised by the assessee are allowed. - ITA No. 475/Kol/2021 ITA No. 478/Kol/2021 ITA No. 515/Kol/2021 ITA No.518/Kol/21 - - - Dated:- 6-4-2022 - Shri A.T. Varkey, Judicial Member And Shri Girish Agrawal, Accountant Member By Appellant : Shri Arvind Agarwal, Advocate, Ld.AR By Respondent : Smt. Ranu Biswas, Addl.CIT, Ld.DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days in ITA No. 518/Kol/2021. Application for condonation of delay is placed on record explaining the cause for delay. Ld. DR did not object on the delay being reasonable. Accordingly, we condone the delay and take up these appeals for adjudication. 4. On perusal of grounds of appeal, it is revealed that all the appeals are mainly on the issue of disallowance made under the head of PF/ESI for delayed payment under section 36(1)(va) read with section 2(24)(x) and section 43B of the Act. 5. Facts briefly stated include that the assessee filed e-return of income for the A.Y under consideration, which was processed u/s.143(1) of the Act by DCIT, CPC, Bangalaru, whereby deposit of PF/ESIC disallowed/added back on account of failure of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, Calcutta in the case of Vijay Shree Ltd, ITA No. 245 of 2011(G.A No.2607 of 2011) dt. 12.8.2015. The issue in hand is covered in favour of assessee by the latest order dt. 17-11-2021 of the Co-ordinate Bench of this Tribunal (ITAT, B Bench, Kolkata) in ITA Nos. 231,365,366,369,367,368 371/Kol/2021 for the AYs. 2015-16, 17-18, 18-19 19-20 in the case of Lumino Industries Ors. In support, reliance is also placed on the orders dt. 16-07-2021, 04-10-2021 and order dt. 11-02-2022, wherein the Co-ordinate Bench, ITAT, Kolkata on similar issue has allowed the appeal of assessee. 9. Smt. Ranu Biswas, Addl. CIT, the Ld. Departmental Representative ( in short, the Ld.DR) has not objected to the factual position of the case relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore an amendment is brought in, which can be discerned from reading of the Notes on Clauses to the Bill which are (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. So when we adjudicate whether the view of Ld CIT(A) that the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the Notes on Clauses and the relevant clauses 8 9 of the Finance Bill, 2021 (supra) pertaining to the issue in hand which in clear and unambiguous terms spells out the intention of Parliament that the amendment shall take effect from 1st April, 2021 and therefore will accordingly apply to Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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