TMI Blog2022 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... under reference to be explanatory of the law, even as signified by the clear, unambiguous language employed therein, are yet stated to be prospective inasmuch as they are applicable assessment year 2021-22 onwards. Lastly, no decision by Hon'ble jurisdictional High Court in the matter has been either cited before me, or found, which, where so, would, irrespective of the view expressed therein, hold for the relevant years, being prior to the year of applicability of the Explanations under reference. No adjustment, in view of the conflicting judicial opinion could, accordingly, be made to the returned income u/s. 143(1)/154, which sections admit only issues on which there could be conceivably no two views, rampant, irrespective of mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income u/s. 139(1), disallowed by the Revenue invoking s. 36(1)(va) per an Intimation u/s. 143(1), is covered by a series of decisions by this Tribunal, including by the Jabalpur Bench, following it s decision in Nikhil Mohine v. Dy. CIT (in ITA Nos. 37 38/Jab/2021, dated 18/11/2021). Sh. Mehrotra, the ld. Sr. DR, would, on asking, concede to this being the position. He was, further, unable to state of any decision by the Hon ble jurisdictional High Court in the matter, i.e., on merits, for a year prior to AY 2021-22, i.e., the date of the coming into effect of the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021, being read as retrospective by the Revenue. This is as in that case, the decision by the Hon'ble juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , upheld constitutionally and not read down. The said decisions must nevertheless be respected, and no adjustment contrary thereto could be made u/s. 143(1); there being no decision by the Hon'ble jurisdictional High Court in the matter. The only manner, therefore, available for the Revenue to effect an adjustment u/s. 143(1)/154, is where the Explanations to section 36(1)(va) and s. 43B(b) inserted by Finance Act, 2021, which attempt to resolve the issue of the employee s contribution to the employee welfare funds being governed by section 43B(b), i.e., to the exclusion of s. 36(1)(va), are held as retrospective. Legislative intent being the cornerstone and the sole determinant of any interpretative exercise, both the language of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. Further still, noticing the settled legal position qua the test for determining retrospectivity, i.e., if the provision could be construed, without the aid of the subsequent amendment thereto, to take within its ambit the said amendment, the issue was also examined by the Tribunal on merits, i.e., for the said limited purpose, to find that the view canvassed by or on the assessee s behalf could be sustained only by ignoring the existence of s. 36(1)(va) which governs the deductibility of the employees contribution to the employee welfare funds, on the statute-book clearly, an impermissibility. Another fundamental infirmity in the assessee s argument is in regarding the employee s contribution, deemed by the legal fiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. 3.2 The said Explanations , the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The amendments by way of Explanation 5 to s. 43B and Explanation 2 to s. 36(1)(va), it concluded, are to therefore take effect only from AY 2021-22, and which view is unmistakable on a plain reading of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce before it, i.e., AY 1992-93, 1994-95 1995-96. The issue considered by the Hon ble Court is, thus, the same as by the Hon ble Apex Court in CIT v. Alom Extrusions Ltd . [2009] 319 ITR 306 (SC), though deciding it to the contrary. As regards the aspect of the retrospective nature of the Explanations under reference, we again find no difference in the view expressed therein with that by the Tribunal in Nikhil Mohine (supra), i.e., per se . So, however, as afore-noted, the said Explanations themselves have been proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, with a view to, as explained, settle the controversy arising due to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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