2022 (3) TMI 1399

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..... 564/KOL/2021, I.T.A. No. 483/KOL/2021, I.T.A. No. 489/KOL/2021 and I.T.A. No. 588 & 589/KOL/2021 - -<br>Income Tax<br>Shri Rajpal Yadav, Vice-President (KZ) And Shri Rajesh Kumar, Accountant Member Sri Aloke Kathotia, FCA, Sri Avijit Dey, Advocate, Sri Anup Sinha, A.R., Sri Anil Kochar, Advocate, &nbsp;Sri Harsh Vardhan Bhardwaj, A.R. Sri Manish Tiwari, FCA, appeared on behalf of the assessee. Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, Shri P.P. Barman, Sr. DR, appeared on behalf of the Revenue. ORDER Per Bench : The appeals at Sr. Nos. 1 to 5 in the Cause Title were heard on 7th March, 2022, wher....

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....with section 36(1)(va). As per this Explanation, it has been provided that provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the "due date" under this clause. He filed a written note in this connection, which we have gone through. 3. On due consideration of the above facts and circumstances, we find that ITAT, Kolkata has duly examined the amendment brought in by virtue of Finance Act, 2021. On the proposition and the discussion made by the ITAT in the case of Lumino Industries Limited & Others read as under:- "17. Have heard both the parties. We note that the Finance Bill, 2021 has brought in an amendment which disallows the employees' contribution made in PF and ESI....

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....ference, 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 th....

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....ourt's view in favor of assessee will hold good and is binding on us. As discussed the decision of the Hon'ble Delhi High Court in Bharat Hotels Ltd. (supra) which was in favor of revenue has not considered the decision of the Co-ordinate Division Bench decision in M/s Aimil Ltd.(supra) which is in favour of assessee. So we note that later decision of the Delhi/Hyderabad Tribunal have followed the decision favouring assessee in the light of the Hon'ble Supreme Court decision in M/s Vegetable Products (supra). In the light of the aforesaid decision and relying on the ratio of the Hon'ble Supreme Court in the case of Vatika Township Pvt. Ltd. (supra) and M/s Snowtex Investment Ltd. (supra) and also taking note of the binding decision of the H....