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TMI Blog2022 (5) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees contribution towards Provident Fund and ESIC on the ground that the same have been paid late as per due date specified under the respective Act. It is submitted that the Employee's Contribution towards PF and ESIC of Rs. 22,95,056/- have been deposited, though after due date prescribed under the relevant Act, but before the due date of filing of return of income u/s 139(1) of the Income Tax Act. On facts and circumstances of the case, all the contributions deposited towards PF and SIC before due date of filing of return of income be allowed u/s 43 of the Income Tax Act and addition made by Ld. AO of Rs 22,95,056/- being incorrect and illegal be deleted in the interest of justice. The same be held accordingly. 2. The ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be deleted. 4. The Order passed by Ld. CIT(A) is bad in law and contrary to the provisions of law and facts. It is submitted that the same be held so now. 2. Brief facts of the case are that the assessee is engaged in the business of security agencies. The assessee has filed the return of income for the assessment year 2018-19 on 29.10.2018 declaring total income of Rs.27,33,280/- and the return of income was processed u/s 143(1) and intimation dated 17.05.2019 was received through E-mail where the Employees Contribution of Provident Fund (PF and ESIC) aggregating to Rs.22,95,056/- was disallowed u/s 36(1)(va) of the Act due to delay in deposit of PF and ESIC under respective Act and the total income was determined Rs.50,28,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted 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 prospectively. The fact remains that the provisions/explanation was introduced in the Finance Act 2021 w.e.f 1-4-2021. 7. We considering the overall facts, circumstances and the submissions find on the similar issue, the Coordinate Bench of this Hon'ble Tribunal in M/s Kalpesh Synthetics Pvt Ltd Vs DCIT. CPC in ITA no 1785/Mum/2021.A.Y 2018-19 order dated 27.04.2022 has considered the facts, provisions of law and allowed the appeal and observed at Page10 Para 9 &10 which is read as under: "9. what a tax auditor states in his report are his opinion and his opinion cannot bind the audite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this due date is "indicative" of the disallowance of expenditure in question. While preparing the tax audit report, the auditor is expected to report the information as per the provisions of the Act, and the tax auditor has done that, but that information ceases to be relevant because, interms of the law laid down by Hon'ble Courts, which binds all of us as much as the enacted legislation does, the said disallowance does not come into play when the payment is made well before the due date of filing the income tax return under section 139(1). Viewed thus also, the impugned adjustment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 framed/amended in the relevant Assessment year and any legal proposition which cast additional burden/liability on the assessee shall be applicable prospectively. We considering the overall facts, circumstances, judicial decisions, are of the reasoned view that the amendment to section 36(1)(va) of the Act will not be applicable to assessment year 2018-19. The assessee has deposited the employee's contribution of Provident fund & ESIC before the due date of return of income u/sec 139(1) of the Act. Accordingly, we set-aside the order of the CIT(A) and direct the assessing officer to delet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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