TaxTMI 
TaxTMI 
2021 (10) TMI 843
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....ight of evidence, probabilities, facts and circumstances of the case. 2. The learned Commissioner of Income tax (Appeals) / National Faceless Appeal Centre (NFAC for short) is not justified in upholding the determination of total income of appellant in the limitation u/s 143(1) of the Act, at Rs. 1,86,337/- as against the returned income of Rs. 64,092/-, on account of the disallowance of Rs. 1,22,245/- made u/s 36(1)(va) of the Act, based upon the details in the Tax Audit Report of the Chartered Accountant in Form 3CD, under the facts and in the circumstances of the appellant's case. 3. The learned CIT(A) / NFAC ought to have appreciated that the aforesaid disallowance of Rs. 1,22,245/- in respect of the belated payments o....
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.... in the circumstances of the appellant's case. 5. Without prejudice to the right to seek waiver with the Hon'ble CCIT /DG, the appellant denies itself liable to be charged to interest u/s. 234B and 234C of the Act, as computed in the intimation u/s.143[1] of the Act, under the facts and in the circumstances of the appellant's case. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs." 3. The brief facts of the case are as follows: The assessee is a firm.....
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....(A) reads as follow:- "From the above amendment, it appears that the law is now clear i.e. employees' contribution to specified fund will not be allowed as deduction if there is delay in deposit even by a single day as per the due dates mentioned in the respective legislation. The language and rational for these amendments clearly indicates that these amendments are retrospective in nature. The amendment to section 36(1)(va) specified states that explanation 2 to the said clause has been inserted to clarify that the provision of section 43B does not apply and deemed to never have been applied to the purpose of determining the due date. Similarly section 43B has been amended by the inserting explanation 5 to the said sectio....
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....see has filed this appeal before the Tribunal. The learned AR submitted that the issue whether the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory or not is now settled by the following orders of the Tribunal:- (i) Dhabriya Polywood Limited v. ACIT reported in (2021) 63 CCH 0030 Jaipur Trib. (ii) NCC Limited v. ACIT reported in (2021) 63 CCH 0060 Hyd Tribunal. (iii) Indian Geotechnical Services v. ACIT in ITA No.622/Del/2018 (order dated 27.08.2021). 6. The learned Standing Counsel by relying on the order of the Delhi Bench of the Tribunal in the case of Vedvan Consultants Pvt. Ltd. v. ACIT in ITA No.1312/Del/ 2020 (order dated 26.08.2021) submitted that the above ord....
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....question of law, the Hon'ble High Court rendered the following findings:- "20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided in sub para (1), the employer shall, before paying the member, his wages, deduct his contribution from his wages and deposit the same together with his own contribution and other charges as stipulated therein with the provident fund or the fund under the ESI Act within fifteen days of the closure of every month pay. It is clear that the word "contribution" used in Clause (b) of Section 43B of the IT Act means the contribution of the employer and the employee. That being so, if the contribution is made on or before the due date for furnishing the return of income unde....
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....h Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution of PF and ESI if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36(1)(va) and 43B of the I.T.Act, alters the position of law adversely to the assessee. Therefore, such amendment cannot be held to be retrospective in nature. Even otherwise, the amendment has been mentioned to be effective from 01.04.2021 and will apply for and from assessment year 2021-2022 onwards. The following orders of the Tribunal had categorically held that the amendment to section 36(1)(va) and 43B of th....