TMI Blog2022 (9) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... nto section 36(1) as well as 43B by Finance Act, 2021. Thus once a fact was brought to the notice to the ld. CIT, he should have got it verified from the ld. Assessing Officer before recording a finding that assessment order is erroneous as much as prejudicial to the interest of revenue. The order of the ld. CIT is totally silent on this aspect. We allow this appeal for statistical purposes and remit this issue to the ld. CIT with a direction that a remand report be called from the ld. Assessing Officer and if it is proved that all these payments have been made before the due date of filing of the return, then proceedings under section 263 will be dropped - Appeal of the assessee is allowed for statistical purposes. - I.T.A. No. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken before the ld. CIT also. This fact is discernable from the submissions dated 14.03.2022 reproduced by the ld. CIT in paragraph no. 4 of the impugned order. 6. The issue regarding allowance and disallowance of PF ESI contribution has been settled by the Hon'ble Jurisdictional High Court and if such contribution has been made before the due date of filing of the return, then no disallowance has to be made. 7. We have recently decided a large number of appeals on this issue. Recently we have considered this aspect in ITA Nos. 531 532/KOL/2021, wherein we took note of the earlier order of ITAT, Kolkata dated 09.03.2022 whereby the Tribunal considered the impact of amendment brought into section 36(1) as well as 43B by Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) has held that the payment of employees' contribution if made by an assessee before the due date of filing of return of income u/s. 139(1) of the Act, is allowable as a deduction. We note that by Finance Act, 2021, the provision of Section 36(1)(va) as well as Section 43B has been amended to this extend by inserting the Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the due date under this clause. For ready reference, we reproduce the Explanation-2 to Section 36(1)(va) as under: Section 36(1)(va) Explanation-2 - For the removal of doubts, it is hereby clarified that the provisions of Section 43B shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, let us look at the Notes on Clauses and the relevant clauses 8 9 of the Finance Bill, 2021 (supra) pertaining to the issue in hand which in clear and unambiguous terms spells out the intention of Parliament that the amendment shall take effect from 1st April, 2021 and therefore will accordingly apply to Assessment Year 2021-22 and subsequent years. So since the legislative intent is clear, the amendment brought in by Finance Act, 2021 on this issue as discussed is prospective and Ld. CIT(A) erred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court's view in favor of assessee will hold good and is binding on us. As discussed the decision of the Hon'ble Delhi High Court in Bharat Hotels Ltd. (supra) which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y gone through the record and find that payments have been made within the due dates of filing of the return. With the above observation, these appeals of the assessee are treated as allowed. The disallowances stand deleted in both the appeals . 8. To our mind, once a fact was brought to the notice to the ld. CIT, he should have got it verified from the ld. Assessing Officer before recording a finding that assessment order is erroneous as much as prejudicial to the interest of revenue. The order of the ld. CIT is totally silent on this aspect. Therefore, we allow this appeal for statistical purposes and remit this issue to the ld. CIT with a direction that a remand report be called from the ld. Assessing Officer and if it is proved that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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