TMI Blog2022 (4) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial precedents in favour of assessee. However, we find that any way this issue is no longer res integra as held by this Tribunal in the case of Lumino Industries Ltd. [ 2021 (11) TMI 926 - ITAT KOLKATA] wherein assessee s favour view was taken by the Tribunal after holding that the amendment brought in by Finance Act, 2021 w.e.f 1.04.2021 is prospective in operation and so will be in force from AY 2021-22 onwards and not retrospective. AO to allow the deduction subject to verification as to whether the assessee has made the employee s contribution before the due date of filing of return of income. If the employees contribution was deposited before the due date of filing of return of income, then the AO to allow the deduction in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and cannot disturb the binding judicial precedents in favour of assessee. However, we find that any way this issue is no longer res integra as held by this Tribunal in the case of Lumino Industries Ltd. vs. ACIT, Circle-5(1), Kolkata in I.T.A. No.365/Kol/2021 for AY 2015-16 order dated 17.11.2021, wherein assessee s favour view was taken by the Tribunal after holding that the amendment brought in by Finance Act, 2021 w.e.f 1.04.2021 is prospective in operation and so will be in force from AY 2021-22 onwards and not retrospective. The relevant portions of decision which reads as under:- 17. Have heard both the parties. We note that the Finance Bill, 2021 has brought in an amendment which disallows the employees contribution made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 the Hon ble Supreme Court in the case of M/s Snowtex Investment Ltd. (supra) wherein the Hon ble Supreme cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional 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 Vatika Township Pvt. Ltd. (supra) and M/s Snowtex Investment Ltd. (supra) and also taking note of the binding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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