TaxTMI 
TaxTMI 
2022 (2) TMI 763
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....eclaring total income of Rs. 3,15,84,750/-. In an intimation dated 08.01.2020 issued u/s. 143(1) of the Act, the Centralized Processing Centre (CPC) added a sum of Rs. 27,73,060/- representing employees' share of contribution to ESI to the extent not paid on or before the due date as mentioned in Sec 36(1)(va) of the Income Tax Act 1961. 3. It was the case of the assessee that employees' share of ESI has been paid before the due date for filing of return u/s. 139(1) of the Act (this fact is not in dispute) and hence has been considered allowable on the basis of decision of Supreme Court in CIT vs. Alom Extrusions Ltd. (2009) 319 ITR 306 (SC) and other cases such as CIT Vs Magus Customers Dialog (P) Ltd. (Kar), CIT Vs Sabri Enterpri....
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.... provides that any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in section 28 of that previous year, in which such sum is actually paid by him. Proviso to the said section provides that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-secti....
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....the Act was duly recognised by the Courts also. The CIT(A) in this regard referred to the following judicial pronouncement wherein the aforesaid distinction has been accepted viz., CIT v. Gujarat State Road Transport Corpn. [2014] 41 taxmann.com 100/366 ITR 170/223 Taxman 398 (Guj.), Popular Vehicles & Services Pvt. Ltd. v. CIT [2018] 96 taxmann.com 13/257 Taxman 120/406 ITR (Ker), CIT Vs. Bharat Hotels 410 ITR 417 (Delhi). 6. The CIT(A), thereafter held that the amendment to section 36(1)(va) by insertion of explanation 2 and the amendment to section 43B by insertion to explanation 5 by the Finance Bill 2021 was only declaratory/clarificatory in nature and there therefore was applicable with retrospective effect by necessary intendment of....