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TMI Blog2022 (6) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... s such may be deleted. 3. The Ld. AO has erred in law and on facts for making addition of late deposits of ESI and EPF ignoring the facts that under PF act employer contribution includes employee contribution and hence the section 43B will apply and not 36(va). The Honorable CIT(A), NFAC has erred in confirming the same. Hence, the addition as such may be deleted. 4. That the Ld. AO(CPC) has erred in facts and in law in making an addition of Rs. 8,28,211.00 while processing u/s. 143(1) on illegal and untenable grounds. The Honorable CIT(A), NFAC has erred in confirming the same. Hence, the addition as such may be deleted. 5. That the Ld. AO(CPC) has erred in facts and in law in making an addition of Rs. 8,28,211.00 while processing u/s. 143(1)(iv) on illegal and untenable grounds. The Honorable CIT(A), NFAC has erred in confirming the same. Hence, the addition as such may be deleted. 6. That the Honorable CIT(A) has erred in law and on facts in sustaining the addition of Rs. 8,28,211.00 ignoring the facts that condition stipulated in section 36(va) is impossible to be performed by him. Hence, the addition as such may be deleted. 7. That the appellant craves leave to add, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income Tax prescribed u/s. 139(1) of Income Tax Act. The aforesaid addition of Rs. 8,28,211/- has been made by way of adjustment and intimation u/s. 143(1) of Income Tax Act. The present appeal pertains to Assessment Year 2019-20. (D.1). The issue before us is whether, the additions amounting to aforesaid total of Rs. 8,28,211/- by way of adjustments and intimation u/s. 143(1) of Income Tax Act in respect of payments of Employee's contribution to ESI/Provident Fund, made by the assessee [payments made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s. 139(1) of Income Tax Act] are to be sustained or deleted. We are aware about amendments to section 36(1)(va) and 43B of Income Tax Act, brought into effect by Finance Act, 2021. As regards whether these amendments are prospective in nature and applicable with effect from 01.04.2021 or retrospective in nature having applicability even before 01.04.2021; it may be mentioned that the present appeal before us pertains to Assessment Year 2019-20; which is before 01.04.2021. We are aware of some reported orders of ITAT, passed after the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which a view in favour of the assessee (that the aforesaid amendments are prospective) can legitimately exist, even if such a view favorable to the assessee is contested by Revenue. (D.1.1. ) Let us consider the two alternate views, one in favour of the assessee and the other in favour of Revenue; more closely. If the view in favour of the assessee, that the aforesaid amendments are prospective, is accepted; then the decisions of Hon'ble Delhi High Court, which is the jurisdictional High Court, in the cases of CIT vs. AIMIL Ltd. 321 ITR 508 (Delhi); and CIT vs. P.M. Electronics Ltd. 313 ITR 161 (Delhi) continue to hold good for Assessment Year 2019-20, to which this appeal pertains. Accordingly, the view taken by Hon'ble Delhi High Court in these cases, that delayed payments of employees contribution of provident fund and ESI [payment made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s. 139(1) of Income Tax Act] does not constitute assessee's income, will continue to hold good for Assessment Year 2019-20, to which this appeal pertains. In such a scenario, the aforesaid add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of Agra Bench of ITAT, in the case of Mahadev Cold Storage vs. Jurisdictional Assessing Officer (supra). At the very least, Revenue should have given due consideration to the fact that the issue was highly debatable and controversial. As already discussed earlier, adjustments u/s. 143(1) of Income Tax Act by way of intimation u/s. 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of section 143(1) of Income Tax Act. Revenue was clearly in error, in making the aforesaid adjustments u/s. 143(1) of Income Tax Act on 12.05.2020 on a debatable and controversial issue. We would like to make respectful mention of order of Jabalpur Bench of ITAT in the case of Nikhil Mohine vs. DCIT (supra), in which similar view has been taken. (D.2. ) Further, it is also well settled that retrospective amendment cannot be invoked to make addition by way of adjustment and intimation u/s. 143 of Income Tax Act. This view was taken by the Hon'ble Supreme Court in the case of CIT vs. Hindustan Electro Graphites Ltd. [2000] 243 ITR 0048 (SC), in which the view of Hon'ble Kolkata High Court in the case of Modern Fibotex India Ltd. & Anr. Vs. DCIT & Ors. [1995] 2 ..... 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