TMI Blog2022 (8) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee [payments made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s 139(1) are to be sustained or deleted? - HELD THAT:- We are aware about amendments to section 36(1)(va) and 43B of Income Tax Act, brought into effect by Finance Act, 2021. As regards whether these amendments are prospective in nature and applicable with effect from 01.04.2021 or retrospective in nature having applicability even before 01.04.2021; we are aware of some reported orders of ITAT, passed after the aforesaid amendments were brought in by Finance Act, 2021; in which the issue in dispute for Assessment Years prior to Assessment Year 2021-22 (i.e. for periods before 01.04.2021) has been decided in favour of the assessee and against Revenue. See DIGIQAL SOLUTION SERVICES PVT. LTD. [ 2022 (1) TMI 27 - ITAT CHANDIGARH] , M/S MAHADEV COLD STORAGE,[ 2021 (6) TMI 506 - ITAT AGRA] . Revenue should have given due consideration to the fact that the issue was highly debatable and controversial. As already discussed earlier, adjustments u/s 143(1) of Income Tax Act by way of intimation u/s 143(1) of Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' contribution towards provident fund and ESI Fund would qualify for deduction even if paid after due date prescribed under Provident Fund Act and ESI Act but before due date of filing of return in view of section 43B of the Income Tax Act. 4. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the addition ignoring the various judicial pronouncements brought on record by the assessee in this regard. 5. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the addition ignoring the clarification in the budget for the year 2021 being effective from Assessment year 2021-22 6. That the appellant craves leave to add, amend or alter any of the grounds of appeal at the time of hearing or before the hearing of Appeal. ITA No.1739/Del/2022 for AY 2020-21 Action of the CIT(A) in confirming the action of A.O. in making an addition of Rs.8,67,387/- u/s 36(1)(va) of the I. T. Act 1961 for delayed deposit of employees contribution of EPF and ESI but paid before the due date of filing of return is unjust, illegal, arbitrary and against the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he foundation of such communication are liable to be quashed. 2. On the facts and circumstances of the case and in law, the assessment proceedings initiated are contrary to the provisions of law, where the notice not being served properly. No opportunity of being heard given by the Ld. AO. There is clear violation of Principle of Natural Justice and justice denied to assessee by Ld. AO and Ld. CIT(A) and therefore, the assessment proceeding initiated alongwith assessment order passed and Order of Ld CIT (A) are liable to be quashed. 3. On the facts and circumstances of the case and in law, the assessing officer has erred in completing the assessment at income of Rs. 45,93.530/- instead of Rs. 30,94,556/- returned tiled by the assessee. Case is not decided on merits. Ld CIT (A) has also rejected the additional facts evidences filed by the appellant and passed the order by not considering adjournment request made by the assesse and without giving the proper opportunity of heard, which is violation of constitutionally guaranteed Principle of Natural Justice. 4. On the facts and circumstances of the case and in law, the assessing officer has erred in making addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The Ld. CIT(A) grossly erred both on facts and in law in confirming the intimation u/s 143(1) sent by CPC whereby it processed the return of income of appellant for AY 2019-20 at Rs. 29,13,349/-. 2. The Ld. CIT(A) grossly erred in facts and in law in misreading the provisions of Section of 36(1)(va) r. w. Section 2(24)(x) r. w. Section 43B r.w. various legal decisions, as applicable for AY 2019-20, and upholding the disallowance of Rs. 14,03,812/- on account of late payment of employee contribution to ESIC/EPF. The appellant further craves leave to add, amend, alter, delete, rescind, forgo or withdraw any of the above grounds of appeal either before or during the course of the appellate proceedings. ITA No.1726/Del/2022 for AY 2018-19 1. On the facts and circumstances of the case, the order passed by the learned Assessing Officer (CPC) is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, the learned A.O. (CPC) has erred both on facts and in law in passing the order under section 143(1) of the Act without providing reasonable opportunity of being heard to the assessee. 3. On the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e does not constitute prima facie adjustment under section 143(1)(a). 2. That on the facts and in the circumstances of the appellant s case, the learned National Faceless Appeal Centre (NFAC) erred both in facts and in law in out rightly dismissing the appeal and upholding the disallowance of expense of Rs.39,04,415/- made by the learned AO, CPC, Bengaluru in the intimation issued u/s 143(1), in violation of principles of natural justice by disregarding the guidelines of Faceless appeal Scheme 2021 to provide opportunity of being heard in personal hearing so as to make oral submissions before the Commissioner (Appeals) through the National Faceless Appeal Centre (NFAC) though specifically requested in the written submission filed before the NFAC. 3. That on the facts and in the circumstances of the appellant s case, the learned National Faceless Appeal Centre erred both in facts and in law in upholding the disallowance of expense of Rs.39,04,415/- made by the learned AO, CPC, Bengaluru in the intimation issued u/s 143(1) on account of crediting employees contribution of PF and ESI in their account after due date as per the said fund under the relevant Act through deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. (B) In these appeals, the issue in dispute is regarding addition made by way of adjustment made u/s 143(1) of Income Tax Act ( IT Act for short); amounting to Rs.3,54,880/- in the case of Garg Heart Centre Nursing Home Pvt. Ltd., Rs.8,67,387/- in the case of Global Groupware Solutions Limited, Rs.47,37,046/-in the case of Publix Realtors and Facilitators Private Limited, Rs.14,98,971/- in the case of Samarpit Suraksha Private Limited, Rs.27,79,194/- in the case of Ritu Mukherji, Rs.14,03,812/- in the case of Manmohan Raizada, Rs.12,97,093/- in the case of Girdhari Yadav, Rs.15,66,558/- in the case of Dharamjit Singh, Rs.39,04,415/- in the case of Virender Pratap Singh, Rs.16,07,092/- in the case of Ansal API Infrastructure Limited and Rs.2,50,49,705/- in the case of M/s Jagatjit Industries Ltd. respectively. Intimations u/s 143(1) were issued by Revenue to the respective assessees, in respect of the aforesaid additions. These amounts are in the nature of payments made by the respective assessees by way of employees contribution to PF/ESI. These amounts were deposited by the respective assessees after the specified date prescribed under the relevant laws governing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective assessees by way of adjustment and intimation u/s 143(1) of Income Tax Act. (C.1.2) The issue before us is whether, the aforesaid additions by way of adjustments and intimation u/s 143(1) of Income Tax Act in respect of payments of Employee s contribution to ESI/Provident Fund, made by the assessee [payments made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s 139(1) of Income Tax Act] are to be sustained or deleted. We are aware about amendments to section 36(1)(va) and 43B of Income Tax Act, brought into effect by Finance Act, 2021. As regards whether these amendments are prospective in nature and applicable with effect from 01.04.2021 or retrospective in nature having applicability even before 01.04.2021; we are aware of some reported orders of ITAT, passed after the aforesaid amendments were brought in by Finance Act, 2021; in which the issue in dispute for Assessment Years prior to Assessment Year 2021-22 (i.e. for periods before 01.04.2021) has been decided in favour of the assessee and against Revenue. Some such decisions are: Digiqal Solution Services Pvt. Ltd. vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternate views, one in favour of the assessee and the other in favour of Revenue; more closely. If the view in favour of the assessee, that the aforesaid amendments are prospective, is accepted; then the decisions of Hon ble Delhi High Court, in the cases of CIT vs. AIMIL Ltd. 321 ITR 508 (Delhi); and CIT vs. P.M. Electronics Ltd. 313 ITR 161 (Delhi) continue to hold good for Assessment Years to which these appeals before us, pertain. Accordingly, the view taken by Hon ble Delhi High Court in these cases, that delayed payments of employees contribution of provident fund and ESI [payment made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s 139(1) of Income Tax Act] does not constitute assessee s income, will continue to hold good for Assessment Years prior to 2021-22 to which these appeals pertain. In such a scenario, the aforesaid additions made to the income of the respective assessees, have no legs to stand; and the same deserve to be deleted. If, however, the contrary view advanced by Revenue is taken, that the aforesaid amendments are retrospective; then the question that will arise i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and intimation u/s 143(1) of Income Tax Act. This view was taken by the Hon ble Supreme Court in the case of CIT vs. Hindustan Electro Graphites Ltd. [2000] 243 ITR 0048 (SC), in which the view of Hon ble Kolkata High Court in the case of Modern Fibotex India Ltd. Anr. Vs. DCIT Ors.[1995] 212 ITR 0496 (Calcutta) was approved. Same view was taken by the Hon ble Madhya Pradesh High Court in the case of CIT vs. Satish Traders [2001] 247 ITR 0119 (Madhya Pradesh). (C.2) In view of foregoing discussion, we come to the following conclusions: (a) The fact that payments by way of employees contribution to provident fund and ESI were made by the respective assessees after stipulated date prescribed under the relevant laws governing provident fund and ESI, but before the due date of filing of return of income prescribed u/s 139(1) of Income Tax Act; is not in dispute. (b) Whether the aforesaid amendments to Income Tax Act by way of Finance Act, 2021 are retrospective or prospective, is debatable and controversial. (c) Adjustments made by Revenue u/s 143(1) of Income Tax Act, whereby aforesaid additions were made to the income of the respective assessee, were unfair, unj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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