TMI Blog2022 (8) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... of its return of income for the year under consideration, therefore, the same being saved by the provisions of Sec. 43B of the Act could not have been disallowed by the A.O. - Decided in favour of assessee. - ITA No. 194/RPR/2019 - - - Dated:- 5-8-2022 - SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER Assessee by : Shri Amit M Jain, Advocate Revenue by : Shri G.N Singh, Sr. DR ORDER PER RAVISH SOOD , JM : The present appeal filed by the assessee is directed against the order passed by the CIT(Appeals)-II, Raipur, dated 05.07.2019, which in turn arises from the order passed by the A.O under Sec 143(3) of the Incometax Act, 1961 (in short the Act ) dated 14.11.2017 for assessment year 2015-16. Before us the assessee has assailed the impugned order on the following grounds of appeal: 1. On the facts and circumstances of the case, the CIT(A) has erred in sustaining the order of the A.O, wherein the A.O has erred in making disallowance of Rs.1,91,013/- out of employees contribution towards EPF/ESIC. The disallowance made by the A.O and confirmed by the CIT-A is unjustified, unwarranted and uncalled for. 2. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the delayed deposit of the employee s share of contribution towards welfare funds by the assessee would not be saved by the extended time period contemplated u/s.43B(b) of the Act. 8. After giving a thoughtful consideration to the issue in hand in the backdrop of the contentions advanced by the ld. Authorized Representatives of both the parties, we find that the issue herein involved is squarely covered by the order passed by the Tribunal in the case of M/s Ind Synergy Limited Vs. The DCIT-1(2), Raipur, ITA No.312/RPR/2016; dated 10/03/2022 (to which one of us, the JM was a party), wherein after exhaustive deliberations it was held as under : Adverting to the disallowance of the assessee s claim for deduction of the employees share of contribution towards PF of Rs.2,88,976/-, we find that the same had been disallowed by the Assessing Officer u/s.2(24)(x) of the Act, for the reason that the said amount was deposited beyond the stipulated time period that was prescribed under the said Employees Welfare Fund Act. Before us, it was claimed by the Ld. AR, that now when the aforesaid amounts were deposited by the assessee before the due date of filing of its return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn between the employers as well as employees contribution to PF and ESI, as both are covered u/s 43B of the Act. 11. Before parting qua the aforesaid issue in hand, we think it apt to deal with the scope of applicability of the amendments that have been made available on the statue vide the Finance Act, 2021, i.e, Explanation 5 to Section 43B and Explanation 2 to Section 36(1)(va), i.e, as to whether those are applicable prospectively w.e.f A.Y 2021-22 onwards, or, are to be given a retrospective effect. Issue in hand is squarely covered by the order of a coordinate bench of the tribunal, i.e, ITAT, Amritsar in the case of Vinko Auto Industries Ltd. Vs. DCIT 2021 (12) TMI 636. In its aforesaid order, the Tribunal had after drawing support from the order of the ITAT, Hyderabad Bench in the case of the Value Momentum Software Services Pvt Ltd. Vs. DCIT in ITA No. 2197/Hyd/2017, dated 19.05.2021, had observed, that the amendments in section 36(1)(va) and section 43B of the Act, vide respective explanations that had been made available on the statue by the Finance Act, 2021, are applicable only from 01.04.2021 i.e. w.e.f A.Y 2021-22 onwards. For the sake of clarity the obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tum Software Services Pvt. Ltd. (ITA No.2197/Hyd/2017 decided on 19.05.2021), have taken into consideration the identical issue qua applicability of the amendment to Section 36(1)(va) and Section 43B of the Act, by inserting Explanations by the Finance Act, 2021 and clearly held that the amendment shall be applicable from 1st April, 2021 onwards . It is also relevant to note that the CBDT has also issued Memorandum of Explanation qua applicability of the amended provisions of Section 36(1)(va) 43B of the Act w.e.f. 1st April, 2021, and Assessment Year 2021-21 onwards, hence there is no doubt qua applicability of the amended provisions referred above, prospectively. On the aforesaid discussion, the second aspect as considered/determined by the ld. CIT(A) qua retrospective application of the amended provisions of Section 36(1)(va) and 43B of the Act wherein Explanations have been inserted by Finance Act, 2021 qua employees share in respect of PF ESI Act, is also unsustainable . 5.4 In view of the above discussions, the disallowances of Rs.5,88,203/- for A.Y.2018-2019 and Rs.60,540/- for A.Y.2019-2020 made by the A.O. and confirmed by the CIT(A) are not sustainable an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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