TMI Blog2022 (3) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... 's Provident Fund (EPF) and Employee's State Insurance Scheme (ESI) as deemed income of the employer under Section 2(24)(x) of the Act. It is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. [ 1973 (1) TMI 1 - SUPREME COURT] by the Hon'ble Supreme Court. Hence, in light of the latest decision in case of Pro Interactive Service (India) Pvt. Ltd. [ 2018 (9) TMI 2009 - DELHI HIGH COURT] the issue is covered in favour of the assessee. Therefore, the CIT(A) as well as the Assessing Officer was not at all justified in disallowing this claim. Thus, the order of the CIT(A) is not just and proper. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The learned CIT(A), NFAC has erred on relying newly amended provisions of Section 43B as well as 36(1)(va). But same are not applicable for the assessment year under consideration. 2. The learned CIT(A) NFAC erred in confirming the additions of Rs.23,03,667/- made by DCIT CPC without considering our submissions made by the Appellant. 3. The learned CIT(A) NFAC has erred by ignoring/omitting the various Judicial decisions on this issue, In the case of Commissioner vs. Extrusions Limited, 185 TAXMAN 416 (SC), the Apex Court held that the amendments made in section 43B of the Act i.e. deletion of section proviso and amendment in the proviso, being curative in nature are retrospectively applicable from 1.4.1988. It further held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assesse. 5. At the time of hearing none appeared on behalf of the assesse, therefore, we are taking the submissions of the assessee mentioned in the Assessment Order as well as the order of the CIT(A) as contentions before us. The assesse submitted before the revenue as well as appellate authorities that the sole issue in the present assessment is related to upholding addition of Rs.23,03,667/- under Section 36(1)(va) of the Act in respect of delay in payments of Employee s contribution of Provident Fund/Employees State Insurance. The assessee further submitted that the Centralized Processing Centre (CPC) has made the said addition without appreciating that the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (Bom.HC) * CIT vs. Nagarjuna Fertilizers and Chemicals Limited (2015) 232 Taxmann 349 (Andhra Pradesh HC) * DCIT vs. Raghuvir Synthetics Limited in Appeal No.333 of 2004 (Guj. HC) * Kamal Textiles vs. ITO (1991) 59 Taxmann 555 (M.P. HC) 6. The Ld. D.R. submitted that the CIT(A) has rightly dismissed the appeal of the assessee thereby stating that the Finance Act, 2021 has amended Section 43B of the Act as well as Section 36(1)(va) by inserting Explanation 5 to Section 43B of the Act and Explanation 2 to Section 36(1)(va) of the Act wherein it is categorically stated that the provisions of these Sections shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Delhi High Court in the case of CIT vs. Bharat Hotels Limited 410 ITR 417 which held against the assessee. The Ld. DR also relied upon the recent decision of the Hon ble Gujarat High Court in case of Pr. CIT vs. M/s Suzlon Energy Ltd. R/Tax Appeal No. 860 of 2019 order dated 11.02.2020. 7. We have heard Ld. DR and perused all the relevant materials available on record. The CIT(A) has confirmed the disallowance on the ground that insertion of Explanation 2 and 5 in Section 43B, 36(1)(va) by Finance Act 2021 is retrospective in nature. Therefore, the payment made to the contribution related to employee s contribution of PF and ESI and after the due date of statutory limit under those Statute but before filing of the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee categorically stated that some of the Hon ble High Courts has decided this issue against the assessee but majority of the Hon ble High Court decisions are in favour of the assessee where employee s contribution was paid after the due date but before filing of Income Tax return. The assessee company has not deposited the employees' contribution within the due date which is prescribed under the said statute i.e. Provident Fund and ESI. This issue is dealt by the Hon'ble Delhi High Court in case of CIT vs. M/s Bharat Hotels Ltd. 410 ITR 417 wherein the issue is decided in favour of the Revenue, without considering the decision of the Hon'ble Delhi High Court in case of CIT vs. AIMIL Ltd. (2010) 321 ITR 508 (Del.). But ..... X X X X Extracts X X X X X X X X Extracts X X X X
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