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TMI Blog2022 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ng grounds of appeal: "1. In facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has erred in enhancing and confirming disallowance of Rs.5,48,921/- made out of Foreign Travels Expenses. 2. In facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) has erred in confirming disallowance of Rs.16,15,349/- [being employees contribution towards (a) PF : Rs.15,57,569/- and (b) ESIC : Rs.57,780/-] overlooking established legal position. 3. The appeal order is bad in law and on facts. 4. The appellant reserves the right to add, amend, alter and omit all or any of the grounds of appeal.." 2. At the very outset of hearing of the appeal, it was submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's share of contributions towards PF & ESI i.e. beyond the stipulated time period contemplated under the respective Employees Welfare Acts, 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. 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 contention the Ld. AR had pressed into service certain pronouncements/orders of various judicial forums. 8. Per contra, the Ld. Departmental Representative (for short 'DR') relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowable as a deduction u/s.43B of the Act. It was submitted by the Ld. AR that the lower authorities had misconceived the settled position of law and disallowed the aforementioned amounts, despite the fact that the same had been deposited prior to "due date" of filing of the return of income by the assessee company. 10. In order to answer the issue as to whether or not the employees contribution to welfare funds falls within the scope and domain of Sec. 43B of the Act, we may herein draw support from the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Hindustan Organic Chemicals Ltd in ITA No. 399/12, dated 11.07.2014. In the said case, the Hon'ble High Court of Bombay was, inter alia, called upon to answer the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been made available on the statue vide the Finance Act, 2021, i.e, "Explanation 5" to Section 43B and "Explanation 2" to Section 36(1)(va), i.e, as to whether those are applicable prospectively w.e.f A.Y 2021-22 onwards, or, are to be given a retrospective effect. Issue in hand is squarely covered by the order of a coordinate bench of the tribunal, i.e, ITAT, Amritsar in the case of Vinko Auto Industries Ltd. Vs. DCIT 2021 (12) TMI 636. In its aforesaid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Assessee must be adopted. The Hon'ble jurisdictional High Court in the case of CIT Vs. M/s Hemla Embroidery Mills (P) Ltd. (366 ITR 167) (P&H HC) and in the case of CIT Vs. M/s Mark Auto Industries Ltd. (358 ITR 43) (P&H HC) clearly held that the assessee is entitled to claim deduction of employee's share of ESI & PF u/s.43B of the Act, if the same has been deposited prior to the filing of return of income u/s.139(1) of the Act. 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns have been inserted by Finance Act, 2021 qua employees' share in respect of PF & ESI Act, is also unsustainable. 5.4 In view of the above discussions, the disallowances of Rs.5,88,203/- for A.Y.2018-2019 and Rs.60,540/- for A.Y.2019-2020 made by the A.O. and confirmed by the CIT(A) are not sustainable and, hence, the same stands deleted." On the basis of our aforesaid deliberations, we are of the considered view, that as the amendments made available on the statue vide the Finance Act, 2021 i.e "Explanation 5" to Section 43B and "Explanation 2" to Section 36(1)(va) are applicable w.e.f 01.04.2021, i.e, from A.Y 2021-22 onwards, therefore, the same would not have any bearing on the case of the assessee before us, i.e, for A.Y 2011- 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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