TMI Blog2022 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... e return. With the above observation, these appeals of the assessee are treated as allowed. The disallowance stand deleted in all the appeals. - Decided in favour of assessee. - I.T.A. Nos. 40, 41/KOL/2022 & 21/KOL/2022 (Assessment Years: 2017-2018 & 2018-2019) - - - Dated:- 22-3-2022 - Shri Rajpal Yadav, Vice-President (KZ) And Shri Manish Borad, Accountant Member Sri Ashish Gupta, A.R. Sri Vikash Surana, A.R., appeared on behalf of the assessee Shri Biswanath Das, Addl. CIT, appeared on behalf of the Revenue ORDER Per Rajpal Yadav, Vice-President (KZ):- These appeals filed by the assessees are directed against the orders of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) as well as section 43B has been amended by the Finance Act, 2021, whereby Explanation (2) has been attached with section 36(1)(va). As per this Explanation, it has been provided that provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the due date under this clause. He filed a writ ten note in this connection, which we have gone through. 3. On due consideration of the above facts and circumstances, we find that ITAT, Kolkata has duly examined the amendment brought in by virtue of Finance Act, 2021. On the proposition and the discussion made by the ITAT in the case of Lumino Industries Limited Others read as under: - 17. Have heard both the parties. We note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be deemed never to have been applied for the purpose of determining the due date under this clause. For ready reference, we reproduce the Explanation-2 to Section 36(1)(va) as under: Section 36(1)(va) Explanation-2 - For the removal of doubts, it is hereby clarified that the provisions 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 18. We find that this amendment has been brought in the Act to provide certainty about the applicability of Section 43B in respect of belated payment of employees contribution. In order to test whether the amendment brought in later is retrospective or not one has to apply the test as laid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issue as discussed is prospective and Ld. CIT(A) erred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court s view in favor of assessee will hold good and is binding on us. As discussed the decision of the Hon ble Delhi 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 Va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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