TMI Blog2022 (6) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequently ground No. 1 is allowed. Non-payment of GST within due date of u/s. 139(1) - As submitted that since the assessee did not get any opportunity to appear before the AO to show the necessary document and its submission since the assessment order was passed by the CPC, Bangalore u/s. 143(1) of the Act and the assessee did not get any opportunity to submit their reply - HELD THAT:- Since the assessment order is an ex-parte and no discussion has been made on merits of the case in respect of instant issue. Therefore, interest of justice, we set aside the impugned issue of non-payment of GST within due date prescribed under the Income Tax Act by the assessee u/s. 139(1) and remitted back to the file of the Ld. AO for deciding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of appeal: i. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in confirming the adjustment in the intimation issued u/s. 143(1) made by the AO (CPC) on account of employees' contribution towards provident fund which was deposited before the due date of filing of return u/s. 139(1). ii. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in confirming the adjustment in the intimation issued u/s. 143(1) made by the AO (CPC) on account of GST of Rs. 6,71,420/- for alleged non-payment of the same within the due date u/s. 139(1) even though the assessee had not claimed the same in the profit and loss account. iii. For that the Ld. AO ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es below, since the assessee has not remitted the employees' contribution towards PF ESI on or before the due date as prescribed by the PF ESI Act, the contribution made belatedly cannot be allowed. However, according to the assessee, since the assessee has undisputedly made the remittance in respect of employees' contribution of PF as well as ESI before filing of the return of income u/s. 139(1) of the Act, no disallowance is warranted. According to the Ld. AR, the CIT(A] has erred in referring to the Amendment brought in by Finance Act 2021 w.e.f. 01.04.2021 inserting an Explanation to section 36(1)(va) and section 43B of the Act and holding it to be clarificatory and so, retrospective in nature. Whereas according to Ld. AR, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. We note that before this amendment has been inserted by Finance Bill, 2021, the Hon'ble Jurisdictional Calcutta High Court in the case of Shri Vijayshree Ltd. Ltd. (supra), M/s. Philips Carbon Black Ltd. (supra), M/s. Coal India Ltd.(supra), M/s. Akzo Nobel India Ltd. (supra) has held that the payment of employees' contribution if made by an assessee before the due date of filing of return of income u/s. 139(1) of the Act, is allowable as a deduction. We note that by Finance Act, 2021, the provision of Section 36(1)(va) as well as Section 43B has been amended to this extend by inserting the Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall be deemed never to have been applied for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. So when we adjudicate whether the view of Ld. CIT(A) that the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the Notes on Clauses and the relevant clauses 8 9 of the Finance Bill, 2021 (supra) pertaining to the issue in hand which in clear and unambiguous terms spells out the intention of Parliament that the amendment shall take effect from 1st April, 2021 and therefore will accordingly apply to Assessment Year 2021-22 and subsequent years. So since the legislative intent is clear, the amendment brought in by Finance Act, 2021 on this issue as discussed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low the appeal of the assessee and direct the A.O. to delete the addition and hold that the Amendment brought in Finance Act 2021 w.e.f. 01.04.2021 by inserting an Explanation to section 36(1)(va) and section 43B of the Act is prospective in nature and would apply from AY 2021-22 onwards. Consequently ground No. 1 is allowed. 9. In respect of issue No. 2 i.e. addition of Rs. 6,71,420/- for non-payment of GST within due date of u/s. 139(1), the Ld. counsel submitted that since the assessee did not get any opportunity to appear before the AO to show the necessary document and its submission since the assessment order was passed by the CPC, Bangalore u/s. 143(1) of the Act and the assessee did not get any opportunity to submit their reply. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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