TMI Blog2022 (6) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... .[ 2011 (9) TMI 30 - CALCUTTA HIGH COURT] - Decided in favour of assessee. - ITA No. 219/Kol/2022 - - - Dated:- 16-6-2022 - Shri Manish Borad , Accountant Member And Shri Sonjoy Sarma , Judicial Member For the Appellant : Sunil Surana , FCA , Ld. AR For the Respondents : Jayanta Khanra , JCIT , Ld. DR ORDER Per Sonjoy Sarma , JM The present appeal has been preferred by the assessee against the order dated 19-04-2022 passed u/s. 250 of the Income-tax Act, 1961 by the of Ld. Commissioner of Income-tax (Appeals), [in short, the Ld. CIT(A)] National Faceless Appeal Centre (NFAC), Delhi, which in turn arises out of processing of return of income u/s. 143(3) of the Income-tax Act, 1961 (in short, the 'Act') by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 04-11-2014 for the A.Y. under consideration declaring total income at Rs. 96,73,740/-. The case was selected scrutiny following service of statutory notices issued u/s. 143(2) and 142(1) on 28-08-2015 and 27.06.2016 respectively along with questionnaire. In response to which, the assessee filed various documents/evidences in support of said return. On perusal of various documents/evidences and books of accounts, the Ld. AO found that the assessee company deposited the employees' contribution belatedly towards PF/ESI amounting to Rs. 1,79,53,513/- after the due date. Admittedly, it was not paid on or before the prescribed due date u/s. 36(1)(va) of the Act. Therefore, the amount of PF/ESI of Rs. 1,79,53,513/- was disallowed/added back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AYs. 2015-16, '17-18, '18-19 '19-20 in respect of Lumino Industries Ors. Copy of which is available on record. Thus, he prayed before us that the disallowance so made by the Ld. AO and confirmed by the Ld. CIT(A) kindly be deleted in view of said order of this Tribunal/Hon'ble Jurisdictional High Court. 7. On the other hand, Shri Jayanta Khanra, JCIT, Ld. Departmental Representative (in short, the Ld. DR) has not objected to the factual position of the case. However, he submitted that the Ld. AO has rightly disallowed the said disallowance and therefore, the Ld. CIT(A) was fully correct/justified in dismissing the appeal of assessee by upholding the said disallowance. 8. After hearing the rival submissions and peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the purpose of determining the date under this clause. For ready reference, we produce the Explanation-2 to Section 36(1)(va) as under: Section 36(1)(va) Explnation-2-For the removal of doubts, it is hereby clarified that the provisions of Section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the 'due date&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) 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 is prospective and Ld. CIT(A) erred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court's view in favour of assessee will hold good and is binding on us. As discussed the decision of the Hon'ble Delhi High Court in Bharat Hotels Ltd. (supra) which was in favor of revenue has not considered the decision of the Co-ordinate Division Bench decision in M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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