TaxTMI 
TaxTMI 
2022 (4) TMI 223
X X X X Extracts X X X X
X X X X Extracts X X X X
....grounds of appeal: "1. The orders of the authorities below in so far as they are against the appellant are opposed to law equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned Commissioner of Income tax [Appeals]/National Faceless Appeal Centre [NFAC for short] is not justified in upholding the determination of total loss of appellant in the Intimation u/s. 143[1] of the Act, at Rs. 63,89,502/- as against the returned loss of Rs. 80,99,676/-, on account of the disallowance of Rs. 17,10,174/- made u/s. 36[1][va] of the Act. based upon the details in the Tax Audit Report of the Chartered Accountant in Form 3CD, under the facts and in the circumstances of the appellant's case. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ataka in favour of the assessee on the ground that the said judgment was rendered before the aforesaid clarificatory amendments made under the facts and in the circumstances of the appellant's case. 5. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG. the appellant denies itself liable to be charged to interest u/s. 234B and 234C of the Act. as computed in the intimation u/s. 143[1] of the Act, under the facts and in the circumstances of the appellant's case. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame need to be remitted within the due date as mentioned in the respective Acts. The CIT(A) also relied on the amendment brought about to section 36(1)(va) and 43B of the I.T. Act. 4. Aggrieved, the assessee has filed this appeal before the Tribunal. 4.1. The Ld. AR submitted that an identical issue is decided in favour of the assessee by the coordinate Bench of this Tribunal in following cases: * M/s. The Continental Restaurant & Cafe Co. v. ITO in ITA No. 388/Bang/2021 (order dated 11.10.2021) * M/s. Nirmal Enviro Solutions Pvt. Ltd. vs. DCIT in ITA No. 315/Bang/2021 (order dated 12.10.2021) * Shri Gopalkrishna Aswini Kumar vs. ACIT in ITA No. 359/Bang/2021 (order dated 13.10.2021) 5. The learned Depart....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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)(va) of the IT Act?" 7.1 In deciding the above substantial question of law, the Hon'ble High Court rendered the following findings:- "20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided 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 "cont....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tive 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 judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution of PF and ESI if the payment was made prior to due date of filing of the return of income u/s. 139(1) of the I.T. Act. Therefore, the amendment brought about by the Finance Act, 2021 to section 36(1)(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. Eve....