TaxTMI 
TaxTMI 
2022 (2) TMI 113
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.... Act, 1961 is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 2. The appellant denies himself liable to be assessed on a total income of Rs. 1,57,24,680/- as against the returned income a sum of Rs. 93,11,020/- under the facts and circumstance of the case. 3. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the intimation issued under section 143(1) of the Act as well confirming the same in the rectification order passed under section 154 of the Act made disallowance in respect of payment of employees contribution a sum of Rs. 64,13,660/- towards provident fund and ESI fund before due date of return of income is not in accordance with law on the facts and ....
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....issioner of Income Tax (Appeals) failed to appreciate the various decisions relied upon by the appellant before the learned Commissioner of Income-tax (Appeals) on the facts and circumstances of the case. 9. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the addition made by the learned Assessing Officer by invoking the provisions of Section 143(1) of the Act is without jurisdiction and not applicable to the facts and circumstance of the case of the appellant. 10. The Appellant denies himself liable to be charged interest under section 234A, 234B and 234C of the Act on the facts and circumstances of the case. 11. The learned Commissioner of Income-tax (Appeals) erred in dismissing the grounds No.1 to 6 file....
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....ore, 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. Ltd Vs. DCIT, reported in 366 ITR 408 (Kar.). The CIT(A), however, rejected the appeal of the assessee. The CIT(A) held that the issue involved in the appeal is debatable and hence appeal cannot be entertained from an order u/s 154 of the I.T.Act. It was further held that the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and has got retrospective operation. 5. Aggrieved, assessee has filed this appeal b....
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....essee would be entitled to deduction of employees' contribution to ESI provided the payment was made prior to the due date of filing of return of income u/s 139(1) of the I.T.Act. The Hon'ble jurisdictional High Court differed with the judgment of the Hon'ble Gujarat High Court in the case of CIT v. Gujarat State Road Transport Corporation reported in 366 ITR 170 (Guj.). The Hon'ble High Court was considering following substantial question of law:- "Whether in law, the Tribunal was justified in affirming the finding of Assessing Officer in denying the appellant's claim of deductions of the employees contribution to PF/ESI alleging that the payment was not made by the appellant in accordance with the provisions u/s 36[1....
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....No.4077/2013. 23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs." 7.2 The further question is whether the amendment to section 36[1][va] and 43B of the Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the ....
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....ly, we direct the A.O. to grant deduction in respect of employees' contribution to ESI since the assessee has made payment before the due date of filing of the return of income u/s 139(1) of the I.T.Act, It is ordered accordingly." 7.1 Therefore, the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment years under consideration. By following the binding decision of the Hon'ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra), the employees' contribution paid by the assessee before the due date of filing of return of income u/s 139(1) of the I.T.Act is an allowable deduction. Accordingly, we decide this issue in favour of the assessee and the disallow....