2022 (7) TMI 1080

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....vances revolve around the single issue namely ld. CIT(Appeals) has erred in confirming the addition of Rs. 1,84,165/-, which was added by the Assessing Officer with the aid of section 36(1)(va) on the ground that the assessee failed to make the payment of employees' contribution to ESI & PF account within the due date provided under the PF & ESI Act. 2. The ld. counsel for the assessee, at the very outset, submitted that the issue in dispute is squarely covered by the judgment of the Hon'ble Jurisdictional High Court in the case of (i) CIT -vs.- Vijayshree Ltd. in ITAT No. 243 of 2011 & GA No. 26607 of 2011;(ii) CIT -vs.- Philips Carbon Black Ltd. in GA No. 1382 of 2014 & ITAT 31 of 2014; (iii) CIT - vs.- M/s. Coal India Ltd. in ....

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....prospective in operation. Whereas according to Ld. CIT(A), the amendment brought in is clarificatory in nature so, retrospective in operation. So we have to adjudicate this issue whether the amendment brought in by Finance Act, 2021 is prospective or retrospective in operation. We note that before this amendment has been inserted by Finance Bill, 2021, the Hon'ble Jurisdictional Calcutta High Court in the case of Shri Vijayshree Ltd. Ltd.(supra), M/s. Philips Carbon Black Ltd.(supra), M/s. Coal India Ltd.(supra), M/s. Akzo Nobel India Ltd. (supra) has held that the payment of employees' contribution if made by an assessee before the due date of filing of return of income u/s. 139(1) of the Act, is allowable as a deduction. We note t....

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....w light as to the legislative intent; because it has to be borne in mind that Parliament/legislature is aware of three concepts before an amendment is brought in, which can be discerned from reading of the "Notes on Clauses" to the Bill which are (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. So when we adjudicate whether the view of Ld. CIT(A) that the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the "Notes on Clauses and the relevant clauses 8 & 9 of the Finance Bill, 2021 (supra) pertaining to the issue in hand which in clear and unambiguous terms spells out....