TMI Blog2022 (4) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITAT KOLKATA] . We do not accept the Ld. CIT(A) s stand denying the claim of assessee since assessee delayed the employees contribution of EPF ESI fund since assessee had deposited the employees contribution before filing of Return of Income. Therefore, the assessee succeeds and we allow the appeal of the assessee - I.T.A. No. 402/Kol/2021 - - - Dated:- 2-3-2022 - Shri Sanjay Garg, Judicial Member And Shri Rajesh Kumar, Accountant Member Shri Harsh Vardhan Vhardwaj, CA, appeared on behalf of the appellant Smt. Ranu Biswas, Addl. CIT-DR, appeared on behalf of the respondent ORDER Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 11.08.2021 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to the case law cited by the ld. Counsel for the assessee. 3. We find that the issue is covered in favour of the assessee as the assessment year involved is AY 2017-18 and the Explanation-5 inserted by Finance Act, 2021 to section 43B w.e.f. 01.04.2021 is not applicable to the assessment year under consideration. The relevant portion of the Coordinate Bench decision of the Tribunal in the case of Harendra Nath Biswas vs. DCIT (supra) for the sake of reference is reproduced as under: 2. The sole grounds of appeal raised by the assessee is against the Ld. CIT(A) in confirming the action of AO who disallowed/added back a sum of ₹ 1,10,62,263/- on account of delayed deposit of employees contribution to PF and ESI u/s 36(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard 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 V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees Contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. In the light of the aforesaid discussion we do not accept the Ld. CIT(A) s stand denying the claim of assessee since assessee delayed the employees contribution of EPF ESI fund and as per the binding decision of the Hon ble High Court in Vijayshree Ltd. (supra) u/s 36(1)(va) of the Act since assessee had deposited the employees contribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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