TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 440
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....tion of employees' contribution towards PF & ESI paid before the due date of filling of the return. 2. The appeal in ITA No. 44/KOL/2022 is time-barred by 27 days. Shri Rajat Bagrodia, Director of the assessee-company has filed an affidavit dated 21.01.2022 praying to condone the delay in view of COVID 19 pandemic and relaxation given in the limitation period by Hon'ble Supreme Court and on the basis of contents of this affidavit, we condone the delay and the appeal is admitted on merit. 3. Since most of the issues in all these appeals are common, therefore, we have decided to dispose of the appeals by a common order for the sake of convenience and brevity. 4. From the perusal of the grounds of appeals, we find that the only common issue relates to the disallowance of employees' contribution to PF & ESI made by the Assessing Officer in view of the provisions of section 2(24)(x) read with section 36(1)(va) of the Act. The first common facts narrated by the respective Ld. counsels for the assessees are that the alleged amount of employees' contribution towards PF & ESI for the year under respective appeals have been deposited before the due date of filing of the re....
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....inserting the Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the due date under this clause. For ready reference, we reproduce the Explanation-2 to Section 36(1)(va) as under: "Section 36(1)(va) Explanation-2 - For the removal of doubts, it is hereby clarified that the provisions of Section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the 'due date' under this clause' 18. We find that this amendment has been brought in the Act to provide certainty about the applicability of Section 43B in respect of belated payment of employees' contribution. In order to test whether the amendment brought in later is retrospective or not one has to apply the test as laid by the Hon'ble Supreme Court in the case of M/s. Snowtex Investment Ltd. (supra) wherein the Hon'ble Supreme court took note of the law laid down on this issue by the Constitution Bench in M/s. Vatika Township Ltd. and held that the intent of the Parliament/legislature need to be looked into for ascertaining whether the amendment sho....
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....es contribution shares towards ESI, PF, by the assessee before the due date of filing of return u/s. 139(1) of the Act. Therefore the appeal of assessee succeeds and so, it is allowed in favor of assessee". 6. After examining the common facts of the instant appeals qua common issue of disallowance of employees' contribution to PF & ESI in the light of the above decision of this Tribunal, we find that though there is a delay in depositing employees' contribution to PF & ESI before the due date prescribed under the law governing PF & ESI, but the alleged amounts have been deposited before the due date of filing of the return of income prescribed under section 139(1) of the Act for the relevant assessment year and the same is verifiable from the documents placed on record including the tax audit report providing the date of deposit of the said amounts. Therefore, the decision of this Tribunal in the case of Lumino Industries Ltd. vs. ACIT (supra) is squarely applicable on this common issue raised in the instant appeal and the explanation inserted by Finance Act, 2021 in section 36(1)(va) of the Act is also held to be prospective in nature and thus not applicable to the years ....
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....n 11.10.2019 and 'e' filed by the auditor on 31.10.2019. The alleged amount was deposited before the due date of filling of the return of income and the same was mentioned by the tax auditor in Column 26(i)(B)(a) of the Form No. 3CD attached with the Tax Audit Report filed on Form 3CD. But due to the typographic error, the same amount pertaining to employer's contribution and GST totalling to Rs. 65,55,885/- was mentioned in Column 26(i)(B)(b), which is meant for the amount not paid on or before the due date of filing of the return of income under section 139(1) of the Act. It is further submitted that during the course of proceeding before the Ld. CIT(Appeals), the assessee has referred to the unsigned audit report uploaded on 08.07.2020, wherein the mistake was corrected but the Ld. CIT(Appeals) did not entertain since report was not digitally signed. 13. Before us, the Ld. counsel for the assessee prayed that the said amount is liable to be allowed under section 43B of the Act and the assessee may be granted an opportunity to explain and prove the same before the Assessing Officer. This request of the Ld. counsel for the assessee was not opposed by the D.R. 14. We ....