2022 (8) TMI 522

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....018-19 and 2019-20. 2. Both the appeals pertain to the same assessee and the grounds of appeal, are identical, but for the figures; therefore, a common order is passed taking appeal in ITA No.73/Mum/2022, as a lead case. 3. The grounds raised by the assessee are as follows:- "GROUND No. I; Disallowance of Rs. 9,93,864/- on account of delay in payment of Employee's contribution to PF and ESIC u/s 36(1) (va); 1. On the facts and in the circumstances of the case and in law, the Ld.Commissioner of Income Tax (Appeals) - National Faceless Appeal Centre ("the CIT(A)") erred in upholding the action of the Deputy Commissioner of Income Tax - CPC ("the AO") of making a disallowance in Intimation u/s. 143(1) of the Act on ....

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....ing on the judgement of jurisdictional High Court in the case of CIT vs Ghatge Patil Transport Ltd (2014) 368 ITR 749 (Bom) and the Hon'ble Apex Court in the case of CIT vs Alom Extrusions Ltd (2009) 319 ITR 306 (SC), the Ld.AR submitted that PF and ESI though was paid after the due date prescribed under the relevant Acts, but was deposited before the due date for filing of return of income under section 139(1) of the Act, is an allowable deduction. The Ld.AR placed his further reliance on the following decisions:- 1. CIT vs Hindustan Organics Chemicals (2014) 366 ITR 1 (Bom) 2. Sagun Foundry (P) Ltd vs CIT (2017) 291 CTR 557 (All) 3. CIT vs Kichha Sugar Co Ltd (2013) 356 ITR 351 (Utt HC) 4. CIT vs State ....

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.... (2009) 319 ITR 306 (SC) that the amendment to section 43B of I.T. Act was applicable to both employer's as well as employees' contribution. Furthermore, the amendment brought out in the Finance Act, 2021 was only prospective and not retrospective thereby was applicable only to assessment year 2021-22 onwards and to subsequent years. The same has been reiterated by the decision of various Benches of the Tribunal. 8. We have also considered the decision of the co-ordinate bench in the caswe of Kalpesh Synthetics Pvt Ltd in ITA No.1785/Mum/2021 dated April 27, 2022 wherein it has been held as under:- "........In our considered view, it cannot be open to the Assessing Officer CPC to take a view contrary to the view taken by the Hon....