TMI Blog2022 (4) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... epresented the uniform view across all the Hon ble Courts prior to the deletion of the second proviso to s. 43B by Finance Act, 2003, w.e.f. 01/4/2004, which the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. The said Explanations , the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Halder, Sr. DR ORDER Per Sanjay Arora, AM This is set of three Appeals by the Assessee directed against separate Orders by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi ( CIT(A) for short) for three consecutive years, being assessment years 2017-18 to 2019-20, dismissing or partly allowing the assessee s appeals contesting the processing of its returns of income for the relevant years under section 143(1) of the Income Tax Act, 1961 ( the Act hereinafter) vide orders dated 06/9/2021, 26/8/2021 and 09/9/2021 respectively for the said three years. The Arguments 2. Opening the arguments for and on behalf of the assessee-appellant, it was submitted by Sh. Ghai, the ld. counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebut any of the contentions by Sh. Ghai and, further, on asking, could not state of any decision by the Hon'ble jurisdictional High Court directly on the point. 3. I have heard the parties, and perused the material on record. The Tribunals decision in Nikhil Mohine 3.1 The Revenue has, invoking section 2(24)(x) r/w s. 36(1)(va), added the Employees contribution to the Employee Provident Fund and Employee State Insurance Fund to the assessee s returned income u/s. 143(1)(a) as the same stood deposited beyond the due date specified u/s. 36(1)(va), even as, admittedly, prior to the due date of filing the return of income u/s. 139(1) for the relevant years. Reliance stands placed by it on the decisions in CIT v. Gujarat State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve exercise, both the language of the provisions, as well as of the recently inserted Explanations thereto, introduced with a view to, as stated therein, remove any doubt in the matter, are unambiguously clear, so that s.36(1)(va) and s. 43B are applicable on different sums. Further, the stated date of the coming into effect (of the Explanations), i.e., 01/4/2021, it was explained, would though be of no moment in view of the express language deeming the stated position as applicable since inception; that being the reason for bringing the Explanations on the statute, as the amendments could otherwise have been effected through prospective clause/s to the relevant provisions. Rather, the tenor of the language employed, clearly giving the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , inasmuch as s. 43B applied only qua deductions otherwise allowable , i.e., under any provision of the Act, rendering the question of law posed before the Hon ble Courts, i.e., if the employee s contribution to the employee welfare funds is exclusively covered u/s. 43B, itself, with respect, misplaced, if not irrelevant. The view being canvassed was, thus, it opined, viewed from any angle, wholly untenable. The view expressed by the Tribunal is in fact in agreement with that projected by the Board per its Circular (No. 22/2015, dtd. 17/12/2015), as also that canvassed per the impugned order with reference to the cited decisions, both explaining, as did the Explanatory Notes on the insertion of s. 36(1)(va) on the statute, the object of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Explanatory Notes to the Provisions of the Finance Bill, 2021 itself admitting of a conflict of judicial opinion, explaining that to be the reason for effecting the amendments per the said Explanations. The only circumstance justifying the impugned additions is a decision/s by the Hon ble jurisdictional High Court (also see para 4.2). No such decision, however, despite asking, stands brought to my notice by the parties, or otherwise found. As regards the aspect of the retrospective nature of the Explanations under reference, I again find no difference in the view expressed therein with that by the Tribunal in Nikhil Mohine (supra), i.e., per se. So, however, as afore-noted, the said Explanations themselves had been proposed as prospect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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