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TMI Blog2022 (5) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... clubbed, heard and consolidated order is passed. 3. For the sake of convenience, we shall take up ITA No.1968/Mum/2021 for A.Y. 2018-19 as the lead case and facts narrated. The assessee has raised the following grounds of appeal:- "1. On the facts and in the circumstances of the case, the Commissioner of Income-tax (Appeals), hereinafter referred to as the "CIT (A)", has erred in confirming the order of the DCIT, CPC disallowing the claim of Rs. 10,58,135 towards contribution of Employees share in Provident fund and ESIC reported under Clause 20(b) where the dates of payment are after the date required under section 36(1 )(va) but before the due date of filing of return u/s 139(1). 2. On the facts and in the circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment details are disclosed in respect of employee contribution to PF and ESIC Act." 5. The Ld.AR submitted that this ground of appeal could not be raised before the Ld.CIT(A), and therefore, made an application for admission of the additional ground of appeal. After hearing the submissions of the Ld.AR and the Ld.DR, the additional ground of appeal is admitted. 6. The brief facts of the case are that the assessee company is engaged in business of manufacture of various types of laser machines and filed the return of income for the assessment year 2018-19 with a total income of Rs.71,21,740/- on 30/11/2018.The return of income was processed u/s 143(1) of the act and intimation dated 16/10/2019 was received through email where the empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provident fund & ESIC within the time allowed under prescribed Act. Whereas, the assessee has deposited the amount before filing of the return of income U/sec139(1) of the Act. The Ld. AR referred to the chart at page 7 in CIT(A) order, whereas there is a delay in depositing the employees contribution to provident fund of Rs. 10,58,135/-and the employees contribution to ESIC Rs.3,35,129/-.The assessee has complied with the provisions of Law and deposited the contributions before the due date of filling the Return of income U/sec139(1) of the Act which cannot be disputed. The Ld.DR submitted that the amendment is retrospective applicable but the Ld.AR submissions are that the amendment has come w.e.f 1-4-2021and the same is applicable pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he due date as per the Explanation to Section 36(1)(va). This due date, however, has not been found to be decisive in the light of the law laid down by Hon'ble Courts above, and it cannot, therefore, be said that the reporting of payment beyond this due date in the tax audit report constituted "disallowance of expenditure indicated in the audit report but not taking into account in the computation of total income in the return" as is sine qua non for disallowance of Section 143(1)(a)(iv). When the due date under Explanation to Section 36(1)(va) is judicially held to be not decisive for determining the disallowance in the computation of total income, there is no good reason to proceed on the basis that the payments having been made after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 43B cannot be applied for determining the due date under Explanation (now Explanation 1) to Section 36(1)(va). That question, in our humble understanding, can be relevant, for example, when a call is required to be taken on merits in respect of an assessment under section 143(3) or under section 143(3) r.w.s. 147 of the Act, or when no findings were to be given on the scope of permissible adjustments under section 143(1)(a)(iv). That is not the situation before us. We, therefore, see no need to deal with that aspect of the matter at this stage. 12. We considering the ratio of judicial decision and the facts emanated in the course of hearing find that the amendment was brought in finance Act 2021 w.e.f 1-4-2021.The law was not fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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