TaxTMI 
TaxTMI 
2022 (5) TMI 94
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Income-tax Act, 1961 ['the Act' for short] respectively in AY 2018-19 and 2019-20. 2. The assessee is engaged in the business of providing Security Services under the name and style Ganga Engineering Works. He filed his returns of income for AY 2018-19 on 28.10.2018 and for AY 2019-20 on 29.10.2019. Both the returns of income were processed u/s. 143(1) of the Act, wherein the disallowance u/s. 36(1)(va) of the Act was made on the ground that the employees contribution to PF and ESI has been paid by the assessee beyond the due date prescribed in the respective Acts. 3. The assessee challenged the above said additions by filing appeals for both the years before Ld. CIT(A) contending that the disallowance should not be made, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the dictum laid down by the Hon'ble jurisdictional High Court in the case of EssaeTeraoka Pvt. Ltd. Vs. DCIT (2014) (43 taxmann.com 33) (Kar), had held that the assessee would be entitled to deduction of employees' contribution to PF and ESI provided that the payments were made prior to the due date of filing of the return of income u/s. 139(1) of the I.T.Act. It was further held 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'....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hin fifteen days of the closure of every month pay. It is clear that the word "contribution" used in Clause (b) of Section 43B of the IT Act means the contribution of the employer and the employee. That being so, if the contribution is made on or before the due date for furnishing the return of income under sub-section (1) of Section 139 of the IT Act is made, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e held to be retrospective in nature. Even otherwise, the amendment has been mentioned to be effective from 01.04.2021 and will apply for and from assessment year 2021-2022 onwards. The following orders of the Tribunal had categorically held that the amendment to section 36[1][va] and 43B of the Actby Finance Act, 2021 is only prospective 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....