TaxTMI 
TaxTMI 
2022 (1) TMI 141
X X X X Extracts X X X X
X X X X Extracts X X X X
....t year 2018-2019 are reproduced :- "1. The order of the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) is opposed to law and facts of the case. 2. The learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre erred in making an addition of Rs. 1,42,33,121/- to the returned income and also failed to consider the fact that under EPF and ESIC statutes, the word contribution is defined to include both the employer's and employee's portion. Further, it is also not possible for the assessee to remit only employee's portion ignoring the employer's portion of the contribution. 3. The learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2,33,121 (for A.Y.2018-2019) and Rs. 1,38,30,683 (for A.Y.2019-2020) being late remittance of employees' contribution to PF and ESI under the respective Acts. 4. Aggrieved by the intimation u/s 143(1) of the I.T.Act, the assessee preferred appeals before the first appellate authority. It was stated that the assessee had paid the employees' contribution to PF and ESI prior to the due date of filing of the return u/s 139(1) of the I.T.Act. Therefore, it was submitted that the assessee is entitled to deduction of employees' contribution to PF and ESI having regard to the provisions of section 43B of the I.T.Act. In this context, the assessee relied on the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka Pvt. Lt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld by the ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. The relevant finding of the ITAT in the case of M/s. Shakuntala Agarbathi Company Vs. DCIT (supra), reads as follows: "7. We have heard rival submissions and perused the material on record. Admittedly, the assessee has remitted the employees' contribution to ESI before the due date for filing of return u/s 139(1) of the I.T.Act. The Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT reported in 366 ITR 408 (Kar.) has categorically held that the assessee would be entitled to deduction of employees' contribution to ESI provided the payment was made prior to the due date of filing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the employer is entitled for deduction. 21. The submission of Mr.Aravind, learned counsel for the revenue that if the employer fails to deduct the employees' contribution on or before the due date, contemplated under the provisions of the PF Act and the PF Scheme, that would have to be treated as income within the meaning of Section 2(24)(x) of the IT Act and in which case, the assessee is liable to pay tax on the said amount treating that as his income, deserves to be rejected. 22. With respect, we find it difficult to endorse the view taken by the Gujarat High Court. WE agree with the view taken by this Court in W.A.No.4077/2013. 23. In the result, the appeal is allowed and the substantial question of law fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e in nature and not retrospective. (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). (iv) M/s.Jana Urban Services for Transformation Private Limited v. DCIT in ITA No.307/Bang/2021 (order dated 11th October, 2021) 7.3 In view of the aforesaid reasoning and the judicial pronouncements cited supra, the amendment by Finance Act, 2021 to Sec.36[1][va] and 43B of the Act will not have application to relevant assessment year, namely A.Y. 2019- 2020. Accordingly, we direct the A.O. to grant deduction in respect ....