AI Drafter 
TaxTMI 
TaxTMI 
2022 (5) TMI 1433
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....of the Finance Act, 2021 which is not applicable to the year under appeal retrospectively." 2.1 At the outset, we note that the appeal is time barred by 16 days. The Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji 1987 taxmann.com 1072, analyzed the provisions of law qua limitation Act and held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justicethat being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is requires to be adopted on principle as ordinarily a litigant does not stand to benefit by lodging an appeal late. Further refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. The Apex Court further held that when substantial justice and technical considerations are pitted against each other, cause of....
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....es & Services (P.) Ltd. v. Commissioner of Income-tax, Ernakulam [2018] 96 taxmann.com 13 (Kerala) has dealt with in detail as to how employee's contribution which is regulated by clause (x) of section 2(24) and sub-clause (va) of section 36(1) would not be affected by section 43B, in particular the effect of non-obstante clause. In the most recent of the decisions, Madras High Court in Unifac Management Services (India) (P.) Ltd. vs. DCIT in 409 ITR 225 held that the scope of section 43B and section 36(1)(va) are different and thus, there is no question of reading both provisions together to consider as to whether the assessee is entitled to deduction in respect of the sum belatedly paid towards such contribution, 5.21 Despite this clear legal position that section 43B of the Act covers only employer's contribution and does not cover employees' contribution, many courts have applied the provision of section 43B on employees' contribution as well and allowed the deduction to employer even if the employees' contribution is deposited by the due of filing Income Tax Return (ITR) as mentioned under section 139(1). It is in this backdrop that vide Finance Bi....
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....3B. In section 43B of the Income-tax Act, after Explanation 4, the following Explanation shall be inserted, namely:- "Explanation 5.-For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 applies.". 5.24 From the above amendment, it is evident that the law is, and has always been very clear i.e., employees' contribution to specified fund will not be allowed as deduction u/s.36(1)(va) if there is delay in deposit even by a single day as per the due dates mentioned in the respective legislation. It is also clear that the amendments are only declaratory/clarificatory in nature and are therefore applicable with retrospective effect by necessary intendment of deeming nature expressly stated therein. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 5.29 From the above judicial decisions and also the unambiguous wording of the now amended provi....
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....e" under this clause -Ins. by the Act No. 13 of 2021, w.e.f. 1-4-2021) is prospective and would not apply to be impugned assessment year. The counsel for the assessee placed reliance on several Tribunal Rulings which have held that the aforesaid Explanation 2 to section 36(1)(va) of the Act is prospective and would not apply to prior years. Therefore, for the assessment year under consideration, the Ld. CIT(Appeals) erred in fact and law in confirming the addition made to the return income by CPC under section 143(1)(a) of the Act. In response, the Ld. DR placed reliance on the observations of Ld. CIT(Appeals) in the appeal order and drew our attention to para 5.2 of the CIT(Appeals) order (reproduced in the earlier part of the judgement). 5. We have heard the rival contentions and perused the material on record. The Supreme Court in the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd[2008] 173 Taxman 322 (SC) has held that non-consideration of a decision of Jurisdictional High Court or of Supreme Court can be said to be a 'mistake apparent from record' which can be rectified under section 254(2) of the Act. Again, the Delhi ITAT in the case of Vijay Sachdev Vs JCIT ....