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TMI Blog2022 (6) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... sed intimation u/s. 143(1) dated 18.05.2019 wherein he has calculated the total income of Rs. 35,65,170/-. 2. The AO has erred in adding the income of Rs. 22,62,260/- being late payment Employees Contribution Provided Fund. 3. The above is not sustainable under section 143(1). 2. The brief facts of the case are that the assessee is engaged in the business. The assessee has filed return of income for the assessment year 2018-19 on 13.10.2018 disclosing a total income of Rs. 13,02,910/-. The return of income was processed u/s. 143(1) and intimation dated 18.05.2019 was issued through E-mail where the employees contribution of provident fund (PF and ESIC) aggregating to Rs. 22,62,260/- was disallowed u/s. 36(1)(va) of the Act due to delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filling the Return of income U/s. 139(1) of the Act which cannot be disputed. The Ld. DR submitted that the amendment is retrospective applicable. The fact remains that the provisions/explanation was introduced in the Finance Act 2021 which is effective from 1-4-2021. 6. We considering the overall facts, circumstances and the submissions find on the similar issue, the Co-ordinate 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 Page 10 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicially 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 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, in terms 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). Viewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage. 7. 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 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/s. 139(1) of the Act. Accordingly, we set-aside the order of the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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