TMI Blog2022 (9) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation 5 to the respective provisions, are prospective in application with effect from 01.04.2021. No disallowance for delayed payment of PF could be made in the case of the assessee u/s 143(1) of the Act being debatable issue. Decided in favour of assessee. - ITA No. 1708/MUM/2022 AND ITA No. 1707/MUM/2022 - - - Dated:- 12-9-2022 - SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) For the Assessee : Mr. Hitesh P. Shah, AR For the Revenue : Mr. T. Shankar, CIT-DR ORDER PER OM PRAKASH KANT, AM These two appeals by the assessee are directed against two separate orders, both dated 05.05.2022, passed by the National Faceless Appeal Centre (hereinafter shall be referred as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant company being the employees' contribution to Provident Fund. 4. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition of Rs. 1,11,145/- u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act, 1961, to the income of the appellant company being Provident fund administration other charges though the appellant company had deposited Provident fund administration other charges before the due date of filing the return of income and hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do not apply to Provident fund administration other charges. 5. The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be disallowed and added to the income of the appellant company. 3. The Commissioner (Appeal) erred in not considering the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra-virus. 3. We have heard rival submission of the parties on the issue-indispute and perused the relevant material on record including the order of the lower authorities. We find that issue-in-dispute in AY 2018-19 is in respect of disallowance of employer and employee contribution to PF paid after due date prescribed under relevant Provident Fund Act, however same was paid before due date of filing of return of income. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of determining the due date under this clause;] 17. The learned CIT DR stated that this is only clarificatory explanation and normal presumption is that these provisions have been in the Act from the very inception, once it is clarificatory for this, she relied on CIT v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold Coin Health Food (P.) Ltd [2008] 304 ITR 308 (SC). 18. On the other hand, the learned Counsel for the assessee relied on the decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad Trib.) dated 15.06.2021, wherein it is held that the provident fund contribution received from employees deposited by assessee before the due date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the same has been clarified to be applicable only with prospective effect from 1-4-2021, I hold that the impugned disallowance is not sustainable in view of all these latest developments even if the Revenue's case is supported by the following case law. 19. In view of the above, we are of the view that the legislative amendments incorporated in section 36(1)(va) and 43B of the Act by the Finance Act, 2021 by inserting explanation 2 and explanation 5 to the respective provisions, are prospective in application with effect from 01.04.2021. Hence, we find no infirmity in the order of Commissioner of Income Tax (Appeals). Hence, the appeal of the Revenue is dismissed. 3.2 Further, the Tribunal in ITA No. 2059/M/2021 in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endments to Income Tax Act by way of Finance Act, 2021 are retrospective or prospective, is debatable and controversial. (c) Adjustments made by Revenue u/s 143(1) of Income Tax Act, whereby aforesaid additions of Rs.21,63,304/- were made, were unfair, unjust and bad in law. (d) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act on debatable and controversial issues is beyond the scope of Section 143(1) of Income Tax Act. Revenue was clearly in error in making the aforesaid adjustments. (e) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act, on the basis of retrospective amendment to Income Tax Act is beyond the scope of Section 143(1) of Income Tax Act. (f) In the present appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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