2022 (7) TMI 1010

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....h in turn arises from the respective intimations issued by the A.O under Sec. 143(1) of the Income-tax Act, 1961 (in short 'the Act') for the respective assessment years. As common issues are involved in the aforementioned appeals, therefore, the same are being taken up and disposed off together by way of a consolidated order. 2. We shall take up the appeal in ITA No.94/RPR/2021 for the assessment year 2019-20 as the lead matter and the order therein passed shall mutatis-mutandis apply to the remaining cases. Before us the assessee has assailed the impugned order on the following grounds of appeal: "1. Whether learned CIT(A) is correct in passing the order, without giving sufficient opportunity of being heard. 2. Whether learned CIT(A) is correct in considering the retrospective effect of amendment made by Finance Act, 2021 in Sec.43B? 3. Whether learned CIT(A) is correct in making addition of Rs.1,99,167/- on account of delay payment of employee contribution. 4. The appellant reserves the right to amend, modify or add any of the grounds of appeal." 3. Shorn of unnecessary details, the return of income filed by the assessee for the assessme....

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.... by aforesaid facts, it is the claim of the Ld. AR that now when the amount in question had been deposited by the assessee prior to the "due date" of filing of his return of income, therefore, no disallowance of the same was called for u/s.43B of the Act. In support of her aforesaid contention the Ld. AR had pressed into service certain pronouncements/orders of various judicial forums. 9. Per contra, the Ld. Departmental Representative (for short 'DR') relied on the orders of the authorities below. It was vehemently submitted by the Ld. DR that pursuant to insertion of 'Explanation-5' to Section 43B a/w. 'Explanation-1' to Section 36(1)(va) of the Act, the legislature had made it abundantly clear beyond any doubt that the delayed deposit of the employee's share of contribution towards welfare funds by the assessee would not be saved by the extended time period contemplated u/s.43B(b) of the Act. 10. After giving a thoughtful consideration to the issue in hand in the backdrop of the contentions advanced by the ld. Authorized Representatives of both the parties, we find that the issue herein involved is squarely covered by the order passed by the Tribunal in the case of M/s Ind....

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....CIT Vs. Amil Ltd reported (2010) 321 ITR 508 (Delhi High Court) ii. CIT Vs. Hemla Embroidery Mills (P) Ltd. (2014) 366 ITR 167 (P&H) iii. Bihar State Warehousing Corporation Ltd.Vs. CIT 386 ITR 410 (Patna) iv. Sagun Foundary Pvt. Ltd Vs. CIT 145 DTR 265 (All) v. CIT Vs. Mark Auto Industries (2008) 358 ITR 43 (P&H) vi. CIT Vs. Jaipur Vidyut Vitran Nigam Ltd (2014) 363 ITR 307 (Raj) vii. Essae Teraoka Pvt. Ltd Vs. DCIT (2014)366 ITR 408 (Kar) viii. CIT Vs. Vijay Shree Ltd (2014) 43 Taxmann.com 396 (Cal) ix. CIT Vs. Kichha Sugar Co Ltd (2013) 356 ITR 351 (Uttarakhand) In the backdrop of the aforesaid settled position of law, we are of the considered view that no distinction is to be drawn between the employers as well as employees contribution to PF and ESI, as both are covered u/s 43B of the Act. 11. Before parting qua the aforesaid issue in hand, we think it apt to deal with the scope of applicability of the amendments that have been made available on the statue vide the Finance Act, 2021, i.e, "Explanation 5" to Section 43B and "Explanation 2" to Section 36(1)(va), i.e, as to whether those are....

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....and employer's share qua PF & ESI contributions. Admittedly there are no contrary judgements of the jurisdictional High Court against the assessee on the aspect under consideration hence, first determination of the Ld. CIT(A) qua non-applicability of the provisions of Section 43B of the Act to the employee's share qua PF & ESI, is unsustainable. 5.3 Now, coming to the second aspect/determination made by the CIT(A) to the effect that the amendment made in Section 36(1)(va) and 43B of the Act by Finance Act 2021 has to be considered as clarificatory in nature and having retrospective effects, therefore would be applicable to the previous assessment years as well. We may observe that various benches of the ITAT including Hyderabad Bench in the case of Value Momentum Software Services Pvt. Ltd. (ITA No.2197/Hyd/2017 decided on 19.05.2021), have taken into consideration the identical issue qua applicability of the amendment to Section 36(1)(va) and Section 43B of the Act, by inserting Explanations by the Finance Act, 2021 and clearly held that the amendment shall be applicable from 1st April, 2021 onwards . It is also relevant to note that the CBDT has also issued Memo....