TMI Blog2022 (9) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ort the Act ) dated 12.03.2021 for the assessment years 2018-19 2019-20. We shall first take up the appeal filed by the assessee in ITA No.12/RPR/2022 for the assessment year 2018-19 as the lead matter and the order therein passed shall apply mutatis-mutandis for the purpose of disposal of the other appeal. Before us the assessee has assailed the impugned order on the following grounds of appeal: 1. In the facts and circumstances of the case and in law, the ld. Commissioner of Income-tax (Appeals) has erred in upholding rejection application filed u/s 154 of the Income-tax Act, 1961 and confirming the adjustment of Rs.3,50,253/- made by CPC out of deposit of employee contribution to PF/ESI made before due date of filing of return. 2. In the facts and circumstances of the case and in law, the ld. Commissioner of Income-tax (Appeals) has erred in confirming adjustment of Rs.3,50,253/- representing employer's contribution to PF/ESI which is a debatable issue. 3. The impugned order is bad in law and in facts. 4. The appellant craves leave to add, alter or omit all or any grounds of appeal in the interest of justice. 2. At the very outset of the hearing of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time period contemplated under the respective Employees Welfare Act, but had deposited the same prior to the due date of filing of its return of income for the year under consideration. Backed by the aforesaid facts, it is the claim of the Ld. Authorized Representative (for short AR ) for the assessee that now when the amount in question had been deposited by the assessee prior to the due date of filing of its return of income, therefore, no disallowance of the same was called for u/s.43B of the Act. In support of his aforesaid contentions, the Ld. AR had pressed into service certain pronouncements/orders of various judicial forums. 9. Per contra, the Ld. Departmental Representative (for short DR ) relied on the orders of the authorities below. It was vehemently submitted by the Ld. DR that pursuant to insertion of Explanation-5 to Section 43B a/w. Explanation-1 to Section 36(1)(va) of the Act, the legislature had made it abundantly clear beyond any doubt that 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. 10. After giving a thoughtfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affirmative and upholding the order of the tribunal qua the aforesaid aspect dismissed the appeal filed by the revenue. Also, we find that a similar view had been arrived at by various Hon ble High Courts, as under :- i. CIT Vs. Amil Ltd reported (2010) 321 ITR 508 (Delhi High Court) ii. CIT Vs. Hemla Embroidery Mills (P) Ltd. (2014) 366 ITR 167 (P H) iii. Bihar State Warehousing Corporation Ltd.Vs. CIT 386 ITR 410 (Patna) iv. Sagun Foundary Pvt. Ltd Vs. CIT 145 DTR 265 (All) v. CIT Vs. Mark Auto Industries (2008) 358 ITR 43 (P H) vi. CIT Vs. Jaipur Vidyut Vitran Nigam Ltd (2014) 363 ITR 307 (Raj) vii. Essae Teraoka Pvt. Ltd Vs. DCIT (2014)366 ITR 408 (Kar) viii. CIT Vs. Vijay Shree Ltd (2014) 43 Taxmann.com 396 (Cal) ix. CIT Vs. Kichha Sugar Co Ltd (2013) 356 ITR 351 (Uttarakhand) In the backdrop of the aforesaid settled position of law, we are of the considered view that no distinction is to be drawn 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above judgments of the Hon ble jurisdictional High Court, it is clear that the Hon ble Court has not drawn any distinction between the employee s and employer s share qua PF ESI contributions. Admittedly there are no contrary judgements of the jurisdictional High Court against the assessee on the aspect under consideration hence, first determination of the Ld. CIT(A) qua non-applicability of the provisions of Section 43B of the Act to the employee s share qua PF ESI, is unsustainable. 5.3 Now, coming to the second aspect/determination made by the CIT(A) to the effect that the amendment made in Section 36(1)(va) and 43B of the Act by Finance Act 2021 has to be considered as clarificatory in nature and having retrospective effects, therefore would be applicable to the previous assessment years as well. We may observe that various benches of the ITAT including Hyderabad Bench in the case of Value Momentum 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by him u/s.36(1)(va) of the Act qua the delayed deposit of the employees share of contribution of EPF/ESIC. The Ground of appeal No.1 2 are allowed in terms of our aforesaid observations. 11. Ground of appeal No.3 4 being general in nature are dismissed as not pressed. 12. In the result, appeal of the assessee in ITA No.12/RPR/2022 for the assessment year 2018-19 is allowed in terms of our aforesaid observations. ITA No.13/RPR/2022 A.Y.2019-20 13. As the facts and the issue involved in the present appeal i.e. ITA No.13/RPR/2022 for the assessment year 2019-20 remains the same as were there before us in the aforementioned appeal of the assessee in ITA No.12/RPR/2022 for assessment year 2018-19, therefore, our order therein passed while disposing off the said appeal shall apply mutatis-mutandis for disposing off the present appeal in ITA No.13/RPR/2022 for the assessment year 2019-20. Accordingly, we allow the present appeal on the same terms and observations as were recorded by us while adjudicating the assessee s appeal in ITA No.12/RPR/2022 for assessment year 2018-19. 14. In the result, appeal of the assessee in ITA No.13/RPR/2022 for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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