TMI Blog2022 (7) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income, we restore this issue to the file AO who shall verify the veracity of the claim of the assessee of having paid the alleged amount duly supported by necessary receipt/challan of having paid the pension amount and if the claim of the assessee is found to correct in light of provision of Section 43B of the Act, then the said disallowance may be deleted and if found otherwise then ld. AO can proceed in accordance with law. Disallowance towards PF ESI - employees' contribution towards PF ESI - Assessee's claim is that the same amount pertaining to FY 2017-18 has been deposited before the due date of filing return of income u/s. 139(1) - HELD THAT:- We find that this issue is no longer res-integra as held by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following grounds: 1. That the Ld. CIT (Appeals) erred in holding that the Appellant did not file its Submissions in response to various Notices mentioned in Para-4 of this Order. In fact, the Appellant had received only Notice dated 16.08.21, and the same was replied on 23.08.21, bearing Acknowledgement No. 342433121240821. 2. That the Ld. CIT (Appeals) erred in confirming the disallowance of Rs. 46,06,60,582/- and addition thereof made by the CPC under Order under Section 143(1) of the Income Tax Act, 1961. 3. That the Ld. CIT (Appeals) erred in confirming the disallowance of Rs. 12,33,470/- being Employees' Contribution to Provident Fund and ESI by the Appellant. 4. That the Ld. CIT (Appeals) erred in holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax audit report and the necessary column was not filled. The alleged amount of monthly pension for Financial Year (in short FY ) 2017-18 has been paid to the provident fund account before the due date of filing return of income and therefore, no disallowance is called for u/s. 43B of the Act. We, further find that no details were filed before the first appellate authority even after being granted various opportunities. Therefore, in the interest of justice and being fair to both the parties and looking to the quantum of the addition and the claim being made by the ld. Counsel for the assessee as an officer of Court that the alleged amount has been paid before the due date of filing return of income, we restore this issue to the file of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the same amount pertaining to FY 2017-18 has been deposited before the due date of filing return of income u/s. 139(1) of the Act. We find that this issue is no longer res-integra as held by this Tribunal in the case of Lumino Industries Ltd. vs. ACIT, Circle-5(1), Kolkata in I.T.A. No. 365/Kol/2021 for AY 2015-16 order dated 17.11.2021, wherein a view was taken in favour of the assessee by the Tribunal after holding that the amendment brought in by Finance Act, 2021 w.e.f 01.04.2021, is prospective in operation and so will be in force from AY 2021-22 onwards and not retrospective. The relevant portions of the decision reads as under: 17. Have heard both the parties. We note that the Finance Bill, 2021 has brought in an amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een applied for the purpose of determining the due date under this clause. For ready reference, we reproduce the Explanation-2 to Section 36(1)(va) as under: Section 36(1)(va) Explanation-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* under this clause. 18. We find that this amendment has been brought in the Act to provide certainty about the applicability of Section 43B in respect of belated payment of employees' contribution. In order to test whether the amendment brought in later is retrospective or not one has to apply the test as laid by the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as discussed is prospective and Ld. CIT(A) erred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court's view in favor 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/s. Aimil Ltd. (supra) which is in favour of assessee. So we note that later decision of the Delhi/Hyderabad Tribunal have followed the decision favouring assessee in the light of the Hon'ble Supreme Court decision in M/s. Vegetable Products (supra). In the light of the aforesaid decision and relying on the ratio of the Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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