TaxTMI 
TaxTMI 
2022 (1) TMI 78
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....ated 20.08.2021. The Action of the CPC and conformation thereof is bad in law and on facts of the case, for want of jurisdiction, principal of natural justice and various other statutory reasons and hence, kindly be deleted. 3. The appellant prays your honour indulgence to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing." 3. The Registry has pointed out that the appeal of the assessee is barred by limitation by 21 days. The assessee moved an application for condonation of delay stating therein as under: "1. That in the aforesaid matter, the impugned order was passed by CIT(A) National Faceless Appeal Centre on 20.08.2021, which was received on 20.08.2021. Accordingly, the appeal was to be filed on/before 19.10.2021 however, the same has been filed on dated 09.11.2021. Thus, delay of 21 days has occurred. 2. In this connection, it is submitted that, the country has been going through the state of pandemic since 2020 and looking into that Hon'ble Supreme Court of India took suo-motu cognizance of the issue and vide order dated 23.03.2020, extended the period of limitations under any general law or any speci....
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....e reckoned from 02.10.2021. Hence, the appeal was to be filed within the 60 days from 02.10.2021 i.e. on or before 01.12.2021, whereas, the appeal has been filed on 09.11.2021, accordingly the appeal is within time of extended period of limitation as prescribed by Hon'ble Apex Court. Prayer: It is, therefore, humbly prayed that this application may kindly be allowed by condoning the delay, following the judgment of Hon'ble Supreme Court of India, in the interest of justice and oblige." During the course of hearing, the ld. Counsel for the assessee reiterated the contents of the aforesaid application and requested to condone the delay. 4. In her rival submissions, the ld. Sr.DR, although, opposed the condonaton of delay in filing the appeal by the assessee, however, could not controvert the aforesaid contention of the ld. Counsel for the assessee. 5. Having considered the submissions of both the parties and perused the material available on record. In the present case, it appears that delay due to spread of second wave of Covid-19 pandemic, was beyond the control of the assessee, therefore, the delay in filing the appeal belated is condoned and the appeal i....
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....Kolkata. The Relevant findings have been given in para 4 of the said order, which read as under;- "4. We have heard both the parties and perused the record. First of all we do not countenance this action of the Ld. CIT(A) for the simple reason that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon'ble High Court will apply and since this Explanation-5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon'ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon'ble Calcutta High Court has taken note of the Hon'ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon'ble Calcutta High Court's decision in Vijayshree Ltd. supra is reproduced as under: "This appeal is at the instance of the Revenue and is directed against an order dated 28th April, 2011 passed by the Income Tax Appellate Tribunal, "A" Bench, Kolkata in ITA No.1091/Kol/2010 relating to assessment year 2006-07 by which the Tribunal dismissed the appeal prefer....
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....owance of Rs. 1,09,343/- and Rs. 3,52,622/-, the assessee's and revenue's stand is that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively. I notice in this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the 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. (i) CIT vs. Merchem Ltd, [2015] 378 ITR 443(Ker) (ii) CIT vs. Gujarat State Road Transport Corporation (2014) 366 ITR 170 (Guj.) (iii) CIT vs. South India Corporation Ltd. (2000) ....
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....the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction....