TaxTMI 
TaxTMI 
2022 (2) TMI 1263
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....ct that, the issue involved was disputed and in the light of ratios laid down by Karnataka High Court and also the Hon'ble Supreme Court, the provisions of section 143(1)(a)(ii) of the act could not have been invoked and no adjustment U/s.143(1) of the act could have been made. 4. The learned Commissioner of Income Tax (Appeals) erred in ignoring the fact that, though the amount of Rs.11,05,657/- being employees contribution to provident fund was not remitted to the respective account before the due date as per the relevant enactments, since the remittances were made within the due date of filing the return of income, the said amount could not have been disallowed in the light of the provisions of section 43B of the act. 5. The learned Commissioner of Income Tax (Appeals) erred in ignoring the ratios laid down in the following decisions. i) Commissioner of Income Tax Vs. Alom Extrusions Ltd (2009) 185 Taxman 416 (SC) ii) Pr.Commissioner of Income Tax, Jaipur V. Rajasthan State Beverages Corporation Ltd (2017) 84 Taxmann.com 185 (SC) iii) Spectrum Consultants India (P) Ltd V. Commissioner of Income Tax, Bengalore-Ill (2013) 34 Taxmann....
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....ons of 36(1)(va) and 43B of the act by way of introduction of Explanation-2 and Explanation-5 respectively would not have retrospective application and hence cannot be applied to A.Y.2019-20. 11. The learned Commissioner of Income Tax (Appeals) has erred in not following the ratio laid down in ITAT. Bangalore in the case of Continental Restaurant and Café Co., V. Income Tax Officer. in ITA No.388/Bang/2021, dated 11.10.2021 for the A.Y.2019-20, wherein it is held that. the amendments to provisions of 36(1)(va) and 43B of the act by way of introduction of Explanation-2 and Explanation-5 respectively would not have retrospective application and hence cannot be applied to A.Y.2019-20. 12. The learned Commissioner of Income Tax (Appeals) has erred in not following the ratio laid down by Delhi Tribunal in the case of Maksat Technologies (P) Ltd V. Deputy Commissioner of Income Tax, Circle - 16(1), New Delhi (2021) 130 Taxmann.com 454 (Delhi-Trib), wherein it is held that, the disallowance U/s.36(1)(va) of the act cannot be made under the provisions of section 143(1) of the act for the reason that, the contributions were not remitted within the due date of the re....
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.... 12.10.2021) • Shri Gopalkrishna Aswini Kumar vs. ACIT in ITA No. 359/Bang/2021 (order dated 13.10.2021) 5. The learned Departmental Representative supported the orders of the Income Tax Authorities. 6. We have heard rival submissions and perused the material on record. An identical issue was considered by the Tribunal in the case of The Continental Restaurant & Café Co. v. ITO (supra). The relevant finding of the Tribunal reads as follows:- "7. I have heard rival submissions and perused the material on record. Admittedly, the assessee has not remitted the employees' contribution of PF of Rs.1,06,190 and ESI of Rs.16,055 totaling to Rs.1,22,245 before the due date specified under the respective Act. However, the assessee had paid the same before the due date of filing of the return u/s 139(1) of the I.T.Act. The Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT reported in 366 ITR 408 (Kar.) has categorically held that the assessee would be entitled to deduction of employees' contribution to PF and 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.....
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....the amendment to section 36(1)(va) and 43B of the I.T.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 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. 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 t....