TaxTMI 
TaxTMI 
2021 (10) TMI 915
X X X X Extracts X X X X
X X X X Extracts X X X X
....61 ['the Act' for short] relating to employees contribution to PF while processing return u/s. 143(1) of the Act. 2. The facts relating to the above said issue are stated in brief. During the year under consideration, the assessee remitted employees contribution of ESI amounting to Rs. 35,06,231/- beyond the due date prescribed under the ESI Act. However, it was paid before the due date for filing return of income u/s. 139(1) of the Act. Hence, the assessee did not make any disallowance u/s. 36(1)(va) of the Act. While processing return of income filed by the assessee, the CPC disallowed the above said amount. Aggrieved, the assessee filed the appeal before the Ld. CIT(A). 3. Before Ld. CIT(A), the assessee placed reliance on the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wing the decision rendered by another coordinate bench in the case of the Continental Restaurant & Café Company Vs. ITO (ITA No. 388/Bang/2021 dated 11.10.2021) has held that disallowance u/s. 36(1)(va) r.w.s. 43B of the Act cannot be made for assessment year 2018-19. For the sake of convenience, we extract below the operative portion of the order passed by the coordinate bench in the case of Nirmal Enviro Solutions Pvt. Ltd. (supra). "7. We have heard rival submissions and perused the material on record. An identical issue was considered by the Tribunal in the case of The Continental Restaurant & Café Co. v. ITO (supra). The relevant finding of the Tribunal reads as follows:- "7. I have heard rival submissions and perused....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ided 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 under sub-section (1) of Section 139 of the IT Act is made, the employer is entitled for deduction. 21. The submission of Mr. Aravind, learned counsel for the revenue that if....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rior to due date of filing of the return of income u/s. 139 of the I.T. Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36(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(va) and 43B of the I.T. Act by Finance Act, 2021 is only prospective in nature and not retrospective. (i) Dhabriya Polywood Limited v. ACIT reported in (2021) 63 CCH 0030 Jaipur Trib. ii) NCC Limited....