2022 (5) TMI 1082 - AT - Income Tax

Tribunal allows appeal, directs AO to verify facts, grant relief.

Tesna Tech Pvt. Ltd. Versus The ITO, Parwanoo

The appeal was partly allowed for statistical purposes. The tribunal directed the AO to verify facts and allow necessary relief in accordance with ... Late deposit of ESI/PF - deposits are made before the filing of the return of income i.e. well within the time of filing the return u/s. 139(1) - HELD THAT:- It is a matter of fact that the amendments carried out in section 36(1)(va) and 43B by the Finance Act, 2021 has consistently be held to the prospective in nature. The year under consideration is 2017-18 assessment year. The issue consequently is no longer res integra. addition need to be deleted as deposits are made before the filing of the return of income i.e. well within the time of filing the return u/s.139(1) - Decided in favour of assessee. Addition u/s. 36(1)(va) - Whether CIT(A) has erred in setting aside to the file of the Ld. AO the issue of addition made by the Ld. AO u/s. 36(1)(va) even when such addition in itself deserved to be deleted and at the same time the Worthy CIT(A) lacked powers to set aside the issue to the file of Ld. AO as per the amendment to S. 250(1) by the Finance Act, 2001? - HELD THAT:- The issue has been remanded back to the Assessing Officer by the Ld. CIT(A) for verification on facts. We find that such a direction does not have any statutory support. Section 251(1)(a) clearly circumscribes the powers of the Commissioner Appeals. It specifically lays down unambiguously that in an appeal against an order of assessment, the Commissioner Appeals may confirm, reduce, enhance or annul the assessment. It is not in dispute that the power to set aside the issue back to the Assessing Officer is no longer vested with the said authority. According, we set aside the finding. On a consideration of the facts on record and in the light of the submissions of the parties before the Bench. we substitute the said direction with our direction and deem it appropriate to direct the Assessing Officer to verify the facts and allow necessary relief in accordance with law set out herein above. Issues Involved:1. Contravention of the provisions of Section 250(6) of the Income Tax Act, 1961.2. Addition of Rs. 4,02,331/- under Section 36(1)(va) of the Act.3. Powers of the AO to make additions under Section 143(1).4. Setting aside of the issue of addition of Rs. 9,29,904/- under Section 36(1)(va).5. Setting aside of the issue of addition of Rs. 10,90,306/- under Section 36(1)(ii).Detailed Analysis:1. Contravention of the provisions of Section 250(6) of the Income Tax Act, 1961:The first ground of appeal was deemed general in nature by the appellant and required no adjudication. This issue was not further addressed in the judgment.2. Addition of Rs. 4,02,331/- under Section 36(1)(va) of the Act:The appellant argued that the addition was incorrect as the amount of ESI and PF collected from employees' salaries was deposited before the due date of filing the Income Tax Return. The tribunal noted that consistent orders of the ITAT have held that amendments in Section 36(1)(va) and 43B by the Finance Act, 2021 are prospective in nature and applicable from the assessment year 2020-21. Therefore, for the assessment year 2017-18, the relief is allowable if the deposits are made before the filing of the return under Section 139(1). The tribunal cited various cases, including Vardhman Textiles Ltd. vs. DCIT, to support this view and decided in favor of the assessee, allowing the grounds.3. Powers of the AO to make additions under Section 143(1):The appellant contended that the AO lacked the power to make the addition under Section 143(1). The tribunal, referencing the same legal position as in the second issue, allowed the grounds in favor of the assessee, affirming that the amendments by the Finance Act, 2021 are prospective and not applicable to the assessment year 2017-18.4. Setting aside of the issue of addition of Rs. 9,29,904/- under Section 36(1)(va):The CIT(A) had remanded the issue back to the AO for verification of employees' contributions. The appellant argued that the CIT(A) no longer had the power to set aside issues to the AO as per the amendment to Section 250(1) by the Finance Act, 2001. The tribunal agreed, noting that Section 251(1)(a) limits the powers of the Commissioner Appeals to confirm, reduce, enhance, or annul the assessment. The tribunal set aside the CIT(A)'s finding and directed the AO to verify the facts and allow necessary relief in accordance with the law.5. Setting aside of the issue of addition of Rs. 10,90,306/- under Section 36(1)(ii):Similar to the fourth issue, the CIT(A) had remanded this issue back to the AO for re-examination due to a clerical mistake in the tax audit report. The tribunal, referencing the statutory provisions and the submissions of the parties, set aside the CIT(A)'s order and directed the AO to verify the facts and allow necessary relief in accordance with the law.Conclusion:The appeal was partly allowed for statistical purposes. The tribunal provided clear directions for the AO to verify facts and allow necessary relief in accordance with the established legal principles and statutory provisions. The order was pronounced on 28th April 2022.