TMI Blog2022 (4) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 143(1), the law on which is well-settled, 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 only circumstance justifying the impugned addition/s is a decision/s by the Hon ble jurisdictional High Court No such decision, however, despite asking, stands brought to our notice by the parties, or otherwise found. The decision by the Hon ble jurisdictional High Court in B.S. Patel v. Dy. CIT [ 2007 (11) TMI 373 - MADHYA PRADESH HIGH COURT] also noticed in Nikhil Mohine (supra), is not squarely on the point and, therefore, of no assistance to the Revenue. As regards the aspect of the retrospective nature of the Explanations under reference, we again find no difference in the view expressed in the impugned order/s, with that by the Tribunal in Nikhil Mohine (supra), i.e., per se. So, however, as afore-noted, the said Explanations themselves stand 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 2. At the very outset, it was submitted by the ld. counsel for the assessee, Sh. Usrethe, that the only issue arising in the instant appeals is the addition of the employee s contribution to the employee welfare funds for the reason of the same having been deposited beyond the due date specified in its respect u/s. 36(1)(va), even as the same stand deposited by the due date/s of filing the return of income u/s. 139(1) of the Act for the relevant year/s. He would, toward the same, take us to the audit report u/s. 44AB of the Act for both the years (at PB pgs. 12-13 / PB pgs. 27-28). The addition, being debatable, could not have been made under section 143(1), even as clarified by the Hon ble jurisdictional High Court in CIT v. Shikarchand Jain [2003] 263 ITR 221 (MP); CIT v. GEI Engineering Ltd. [2009] 310 ITR 112 (MP), as indeed by the Tribunal in Nikhil Mohine v. Dy. CIT (in ITA Nos. 37 38/Jab/2021, dated 18.11.2021/PB pg. 17), a decision which is squarely on the point, and on which the assessee places total reliance. He, on being inquired by the Bench, stated of there being no decision by the Hon'ble jurisdictional High Court to the contrary, i.e., opining that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to resolve the issue of the employee s contribution to the employee welfare funds as 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 relevant provisions, as well as of the recently inserted Explanations thereto, introduced with a view to, as stated therein, remove any doubt in the matter, it opined, are unambiguously clear, so that s. 36(1)(va) and s. 43B operate in different fields and are applicable on different sums. Further, the stated date of the coming into effect (of the Explanations), i.e., 01/4/2021, it 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 said 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 position a retrospective effect, necessarily requires the Explanations to be read as inserted from a later date. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va) and 43B by Finance Act, 2021 seek 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 documents. Decision 4.1 The view recorded in the impugned order/s 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 adjustment u/s. 143(1), the law on which is well-settled, with the Explanatory Notes to the Provisions of the Finance Bill, 2021 itself adm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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