TMI Blog2022 (2) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 and will accordingly apply to assessment year 2021-22 and subsequent assessment years . In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case. See SHRI GOPALAKRISHNA ASWINI KUMAR VERSUS THE ASSISTANT DIRECTOR OF INCOME TAX, BENGALURU [ 2021 (10) TMI 952 - ITAT BANGALORE] Thus addition so made by the CPC towards the deposit of the employees s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted. - Decided in favour of assessee. - ITA. No. 160 & 161/JP/2021, ITA. No. 294/JP/2021, ITA. No. 293/JP/2021, ITA. No. 258/JP/2021, ITA. No. 225/JP/2021, ITA. No. 224/JP/2021 And ITA. No. 170/JP/2021 - - - Dated:- 28-2-2022 - Shri Sandeep Gosain, JM And Dr. Mitha Lal Meena, AM For the Assessee : Shri Vikram Gupta (C.A.), Shri Mahendra Gargieya (Adv) Shri P.C. Parwal (CA) Shri R.N. Maharwal (CA) Ms. Suhani Maharwal (CA). For the Revenue : Smt. Runi Pal (Addl. CIT) Smt. Monisha Choudhary(JCIT). ORDER PER : SANDEEP GOSAIN, J.M. All these above appeals by the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court vide order dated 10/01/2022 passed in Miscellaneous Application No. 21 of 2022 in Misc. Application No. 665/2021, has extended the period of the limitation as prescribed under any general or special laws in respect of all judicial and quasi-judicial proceeding till further orders and directed that the period of limitation from 15/03/2020 to 28/02/2022 in filing these appeals stands excluded from limitation by the order of the Hon ble Supreme Court. The assessee(s) prayed that in present appeal, the period of limitation falls within the aforesaid period of exclusion and, therefore, appeal filed by the assessee(s) are not barred by the limitation. The learned Departmental Representative also could not controvert above facts. In view of the order of the Hon ble Supreme Court (supra), it is held that the appeals filed by the assessee(s) are not delayed and accordingly admitted. 5. The only grievance made by the assessee in this appeal relates to confirmation of the disallowance of Rs. 9,55,353/- made by the A.O. on account of late payments towards EPF and ESI under section 36(1)(va) of the Income Tax Act, 1961 (for short the Act ), however, before furnishi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the tax audit report and ITR has been duly flagged by the CPC in the computerized processing and disallowance U/s 143(1)(a)(iv) on the basis of fact furnished by the assessee was made which clearly fails within ambit of prima facie adjustment to be carried out U/s 143(1)(a)(iv) of the Act. Further, reliance was placed on the amendment brought in by the Finance Act, 2021 wherein the explanation to Section 36(1)(va) has been introduced. It was submitted from the said amendment, it is evident that the law is and has always very clear i.e. employee s contribution to specified fund will not be allowed as deduction U/s 36(1)(va) if there is delay in deposit even by a single day as per the due dates mentioned in the respective legislation. It is also clear that the amendments are only declaratory/clarificatory in nature and are therefore, applicable with retrospective effect by necessary intendment of deeming nature expressly stated therein. The ld. DR accordingly submitted that in view of the unambiguous wording of the now amended provisions of Section 36(1) and 43B, it is clear that the employee s contribution can be allowed as a deduction only if it had been paid within the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs 4,38,530/- so made by the CPC towards the delayed deposit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted. 11. In light of the aforesaid discussions and in the entirety of facts and circumstances of the case and following the consistent decisions taken by the various Benches of the Tribunal, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 9,55,353/- so made by the CPC towards the deposit of the employees s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted. 12. In the result, the appeal of the assessee is allowed. 13. In other appeal also the facts are identical to the facts involved in ITA No. 160/JP/2021 for the A.Y. 2018-19, the only difference is in the amount of disallowance made by the A.O. and sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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