TMI Blog2022 (2) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner of Income Tax (Appeals) is opposed to the facts of the case and law applicable to it. 2. The learned Commissioner of Income Tax (Appeals) erred in confirming the disallowance of Rs.11,05,657/- invoking the provisions of section 143(1)(a)(ii) of the act, holding that the said amount is assessable under the provisions of section 36(1)(va) of the act. 3. The learned Commissioner of Income Tax (Appeals) erred in ignoring the fact that, the issue involved was disputed and in the light of ratios laid down by Karnataka High Court and also the Hon'ble Supreme Court, the provisions of section 143(1)(a)(ii) of the act could not have been invoked and no adjustment U/s.143(1) of the act could have been made. 4. The learned Commissioner of Income Tax (Appeals) erred in ignoring the fact that, though the amount of Rs.11,05,657/- being employees contribution to provident fund was not remitted to the respective account before the due date as per the relevant enactments, since the remittances were made within the due date of filing the return of income, the said amount could not have been disallowed in the light of the provisions of section 43B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation-5 below the provisions of section 43B of the act are w.e.f 01.04.2021 and cannot be applied retrospectively. 10. The learned Commissioner of Income Tax (Appeals) erred in not following the ratio laid down by ITAT. Bangalore in ITA No.376/Bang/2021 for the A.Y.2017-18 in the case of M/s.Bevelgears India (P) Ltd V. ACIT, Circle- 1(1)(2), Bangalore, wherein it is held that. the amendments to provisions of 36(1)(va) and 43B of the act by way of introduction of Explanation-2 and Explanation-5 respectively would not have retrospective application and hence cannot be applied to A.Y.2019-20. 11. The learned Commissioner of Income Tax (Appeals) has erred in not following the ratio laid down in ITAT. Bangalore in the case of Continental Restaurant and Caf Co., V. Income Tax Officer. in ITA No.388/Bang/2021, dated 11.10.2021 for the A.Y.2019-20, wherein it is held that. the amendments to provisions of 36(1)(va) and 43B of the act by way of introduction of Explanation-2 and Explanation-5 respectively would not have retrospective application and hence cannot be applied to A.Y.2019-20. 12. The learned Commissioner of Income Tax (Appeals) has erred in not following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this appeal before the Tribunal. 4.1 The Ld.AR submitted that an identical issue is decided in favour of the assessee by the coordinate Bench of this Tribunal in following cases: M/s.The Continental Restaurant Caf Co. v. ITO in ITA No.388/Bang/2021 (order dated 11.10.2021) M/s. Nirmal Enviro Solutions Pvt. Ltd. vs. DCIT in ITA No. 315/Bang/2021 (order dated 12.10.2021) Shri Gopalkrishna Aswini Kumar vs. ACIT in ITA No. 359/Bang/2021 (order dated 13.10.2021) 5. The learned Departmental Representative supported the orders of the Income Tax Authorities. 6. We have heard rival submissions and perused the material on record. An identical issue was considered by the Tribunal in the case of The Continental Restaurant Caf Co. v. ITO (supra). The relevant finding of the Tribunal reads as follows:- 7. I have heard rival submissions and perused the material on record. Admittedly, the assessee has not remitted the employees' contribution of PF of Rs.1,06,190 and ESI of Rs.16,055 totaling to Rs.1,22,245 before the due date specified under the respective Act. However, the assessee had paid the same before the due date of filing of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Gujarat High Court. WE agree with the view taken by this Court in W.A.No.4077/2013. 23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs. 7.2 The further question is whether the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is for the removal of doubts cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution of PF and ESI if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amendment brought about by the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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