TMI Blog2022 (5) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... T This is an appeal by the assessee against the order dt. 21/12/2021 of the Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi. 2. The Registry has pointed out that the appeal is barred by limitation by two days. The assessee furnished an application for codonation of delay stating therein as under: Sub.:-ln Appeal No. ITA 100/Chandi/2022 for Assessment Year 2019-20 -Application for condonation of delay of 2 days in receipt of appeal in ITAT. Hon'ble Sir/Madam, Most respectfully and humbly submitted that the aforesaid appeal is against the order of CIT(A), NFAC, Delhi against order dated 21.12.2021, which was received on 23/12/2021 and appeal was received by this Hon'ble ITAT on 23.02.2022 resulting in delay of 2 days in filing appeal as intimated by registry of this Hon'ble Bench. The delay was beyond the control of appellant as narrated below:- That the Appeal papers were delivered to dispatch clerk on 19.02.2022 for dispatch through Speed Post. However, on Saturday the relevant counted was not working due to duties of post office staff for election work. On 20.02.2022, there were elections in Punjab and on 21.02.2022 Post o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. The Ld. DR could not controvert the contents of the aforesaid application for condonation of delay, we therefore considering the explanation given by the assessee condone the delay which was beyond the control of the assessee and the appeal is admitted. 5. Following grounds have been raised in this appeal. 1. That the Ld. CIT(A) has erred in law and facts of the case in upholding addition of Rs. 1188745/- towards late deposit of EPF without appreciating that it has been deposited before filing of ITR. 2. That the Ld. CIT(A) has erred in law and facts of the case in upholding addition of Rs. 197324/- towards late deposit of ESI without appreciating that it has been deposited before filing of ITR. 3. That the assesee craves leave alter/amend/delete the aforesaid grounds of appeal or to take any other ground at the time of hearing and till the appeal is finally disposed off. 6. The only grievance of the assessee relates to the disallowance of Rs. 1386069/- made by the A.O. on account of late payments towards EPF and ESI under section 36(1)(va) of the Income Tax Act, 1961 (for short the Act ), however, before furnishing the return of income under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid deposits were made prior to filing of return of income u/s 139(1) of the Act. 8.1 Identical issue with the similar facts have already been adjudicated by the various Benches of the ITAT. 8.2 In the case of HarendraNathBiswasvs DCIT Koltaka, ITA No. 186/Kol/2021 for the A.Y. 2019-20, similar issue has been decided vide order dated 16.7.2021 by the ITAT B Bench, Kolkata. The Relevant findings have been given in para 4 of the said order, which read as under;- 4. We have heard both the parties and perused the record. First of all we do not countenance this action of the Ld. CIT(A) for the simple reason that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon ble High Court will apply and since this Explanation-5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon ble Calcutta High Court has taken note of the Hon ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 9. Similar view has been taken by the ITAT Hyderabad SMC Bench in ITA No. 644/Hyd./2020 for the AY 2019-20 in the case of Salzgitter Hydraulics Private Ltd, Hyderabad vs ITO vide order dt 15.6.2021. The relevant findings given in para 2 of the said order read as under:- 2. Coming to the sole substantive issue of ESI/PF disallowance of Rs.1,09,343/- and Rs.3,52,622/-, the assessee s and revenue s stand is that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively. I notice in this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, I hold that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, further more second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs 4,38,530/- so made by the CPC towards the delayed deposit of the employees s contribution towards ESI and PF though paid well before the due date of filing of retur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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