TMI Blog2022 (9) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... justifying a rectification u/s. 154/254(2), even where rendered after the date of the order sought to be rectified. See SAURASHTRA KUTCH STOCK EXCHANGE LTD [ 2008 (9) TMI 11 - SUPREME COURT] and SMT. ARUNA LUTHRA. [ 2001 (8) TMI 84 - PUNJAB AND HARYANA HIGH COURT] No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine [ 2021 (11) TMI 927 - ITAT JABALPUR] any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. The impugned additions, therefore, could not have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard the party before us, and perused the material on record. The Tribunals decision in Nikhil Mohine 3.1 The Revenue has, invoking section 2(24)(x) r/w s. 36(1)(va), added the Employees contribution to the Employee Provident Fund and Employee State Insurance Fund, at a total of rs. 90, 13,523, to the assessee s returned income u/s. 143(1)(a) as the same stood deposited beyond the due date specified u/s. 36(1)(va), even as, admittedly, prior to the due date of filing the return of income u/s. 139(1) for the relevant year. Reliance stands placed by it on the decisions in Popular Vehicles Services (P.) Ltd. [2018] 96 taxman.com 13 (Ker); CIT v. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj), CIT v. Mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, both the language of the provisions, as well as of the recently inserted Explanations thereto, introduced with a view to, as stated therein, remove any doubt in the matter, are unambiguously clear, so that s.36(1)(va) and s. 43B are applicable on different sums. Further, the stated date of the coming into effect (of the Explanations), i.e., 01/4/2021, it was explained, would though be of no moment in view of the express language deeming the stated position as applicable since inception; that being the reason for bringing the Explanations on the statute, as the amendments could otherwise have been effected through prospective clause/s to the relevant provisions. Rather, the tenor of the language employed, clearly giving the stated posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(24)(x) as the assessee-employer s income, as an expense deductible u/s. 37(1), which could be so only where it is not recoverable an impossibility, as the s. 2(24)(x) applied only on receipt thereof, again bringing s. 36(1)(va) into play for its deduction, and which would therefore have to be given effect to. This would be so even if the same was regarded, for the sake of argument, as covered by s. 43B, a non-obstante provision, inasmuch as s. 43B applied only qua deductions otherwise allowable , i.e., under any provision of the Act, rendering the question of law posed before the Hon ble Courts, i.e., if the employee s contribution to the employee welfare funds is exclusively covered u/s. 43B, itself, with respect, misplaced, if not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Decision 4.1 The view recorded in the impugned order on the merits of the additions even as the same agrees with that expressed by the Tribunal in Nikhil Mohine (supra)(see para 3.1 of this order), is of little consequence in view of the limited scope of an of an adjustment u/s. 143(1)(a), law on which is well-settled, for which though reference may be made to, apart from the language of the provision, on CIT v. GEI Engineering Ltd. [2009] 310 ITR 112 (MP); CIT v. Shikarchand Jain [2003] 263 ITR 221 (MP), to cite some, with the Explanatory Notes to the Provisions of the Finance Bill, 2021 itself admitting of a conflict of judicial opinion, explaining that to be the reason for effecting the amendments per the said Explanations. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Aruna Luthra [2001] 252 ITR 76 (P H)(FB)). No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine (supra). Any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. 4.3 The impugned additions, therefore, could not have been made under the given facts and circumstances of the case, and are directed for deletion. We decide accordingly. 5. In the result, the assessee s appeal is allowed. Order pronounced in the Open Court on September 13, 2022 - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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