TaxTMI 
TaxTMI 
2022 (8) TMI 1135
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....l Bharat, Judicial Member And Shri Anadee Nath Misshra, Accountant Member For the Appellant : Sh. Narendra Kumar Rustogi, Authorized Representative, Sh. Ashok Khandelwal, Authorized Representative, Shri Aman Garg, Advocate, Shri Hemant Jain, Advocate, Ms. Timsy Sharma, Authorized Representative For the Respondent : Sh. H.K. Choudhary, Commissioner of Income Tax, Departmental Representative ("CIT-DR" for short) ORDER PER BENCH: (A) The captioned appeals filed by the respective assessees/Revenue are hereby disposed off through this consolidated order, for the sake of convenience, as the issue involved in these appeals is common. The grounds of appeal are as under: ITA No.1700/Del/2022 for AY 2018-19 "1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeal) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in passing the order without providing reasonable opportunity of being heard to the assessee in clear violation of principle of natural justice. 3. (i) On the facts and circums....
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....ion 36(1 )(va) of the Act.in the instant case in arbitrary and mechanical manner, without application of mind. 3. The Learned CIT (Appeals) had failed to distinguish the submission of Assessee and is merely relying on the order of Assessing officer. Department or AO should have act wisely to support the assessee. Each and every assessee should not be looked at as a tax evader. Appellant prays that the order of the Learned CIT (Appeals) is against the principles of natural justice and equity and thus deserves to be quashed. 4. The Learned CIT (Appeals) erred in law and on facts of the case in sustaining the order of Assessing officer. The business nature of the assessee should also be kept in mind and appellate authority should look at the case not from the perspective of department rather they should act as a judge to give required justice to the parties. 5. That the total income assessed and the Income-tax demand created thereon are arbitrary unjust and illegal. At any rate, without prejudice, the same is very excessive It is, therefore, prayed that the impugned addition of Rs. 47,37,046/- be deleted and the appeal be allowed. 6. That the appell....
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.... The appellant craves leave to add, alter, modify or delete one or more ground of appeal before or at the time of hearing of appeal." ITA No.1666/Del/2022 for AY 2018-19 "1. On the facts and circumstances of the case, the order passed by the National Faceless Appeal Centre (NFAC) is bad both in the eye of law and on facts. 2. (i) On the facts and circumstances of the case, the NFAC has erred both on facts and in law in confirming the disallowance of Rs.27,79,194/- made by the AO(CPC) on account of late deposit of employees' contribution towards provident fund and employees state insurance Fund. (ii) That the above disallowance has been confirmed ignoring the contention of the assesse that employees' contribution towards provident fund and ESI Fund would qualify for deduction even if paid after due date prescribed under Provident Fund Act and ESI Act but before due date of filing of return of income in view of section 43B of the Income Tax Act. 3. On the facts and circumstances of the case, the NFAC has erred both on facts and in law in confirming the addition ignoring the various judicial pronouncements brought on record by the a....
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....disallowance has been made ignoring the various judicial pronouncement that employees' contribution towards provident fund and ESI would qualify for deduction even if paid after due date prescribed under Provident Fund Act / ESI Act but before due date of filing of return. 6. On the facts and circumstances of the case the learned AO has erred both on facts and in law in charging interest under Section 234B and 234C of the Act. 7. That the appellant craves leave to add, amend or alter any of the grounds of appeal." ITA No.1767/Del/2022 for AY 2018-19 "1. That the CIT(A) has erred in law in sustaining the order passed by the AO, CPC Bengaluru in which he has made the addition of Rs.15,66,558/- pertaining to late deposit of ESI & EPF, even when the same was deposited before the due date of filing the income tax return. 2. That the CIT(A) while confirming the order/intimation passed U/s 143(1), has failed to appreciate that amendment in section 36 (1)(va) is being effective from the A.Y.2021-22 and is thus not applicable to the present assessment year viz. 2018-19" ITA No.1779/Del/2022 for AY 2020-21 "1. That on the facts a....
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....Rs.16,07,092/- made under section 36(l)(va) read with section 2(24)(x) of the Income tax Act, 1961 ("the Act") for the reason that the employee's contribution to ESI and PF were deposited late. 1.1 That on the facts and circumstances of the case and in law, the CIT(A)-NFAC has erred in holding that Explanation 2 to section 36(1)(va) and Explanation 5 to section 43B inserted by the Finance Act, 2021 are clarificatory in nature and would apply to pending proceedings. It was not appreciated that the amendment to sections 36(1)(va) and 43B by the Finance Act, 2021 was prospective. 1.2 Without prejudice, that on the facts and circumstances of the case and in law, the reasons recorded by the CIT(A)- NFAC have been considered and not accepted in Pr. CIT v. Rajasthan State Beverages Corpn Ltd [2017] 250 Taxman 16 (SC), CIT v. AIMIL Ltd. (2010) 321 ITR 508 (Del), CIT v. M. L. Outsourcing P. Ltd. [ITA No.10/2016 dated 13.1.2016], Pr. CIT v. Pro Interactive Service (India) Pvt. Ltd. [ITA 983/2018 dated 10.9.2018] and Raj Kumar v. ITD, CPC Bengaluru [2022] 136 taxmann.com 244 (Delhi - Trib.). In any case, since there existed two views, the view in favour of the assessee w....
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....e us in the case of M/s Jajatjit Industries Ltd. (ITA No.1725/Del/2022) has been filed by Revenue and the other present appeals before us have been filed by the respective assessees; against the respective impugned appellate orders of Ld. CIT(A). (C) At the time of hearing before us, the Ld. CIT(DR) submitted that the amendments brought to section 36(1)(va) of IT Act (by way of insertion of Explanation-2) and to section 43B of IT Act (by way of insertion of Explanation-5) are retrospective in nature. It was his contention that these amendments being retrospective in nature; the aforesaid additions made u/s 143(1) were justified. Accordingly, he defended these additions. (C.1) The Learned Authorized Representatives ("Ld. ARs") for the respective assessees contended that the aforesaid amendments to section 36(1)(va) and section 43B were prospective in nature applicable with effect from AY 2021-22; and had no application for the relevant Assessment Years, to which these appeals before us pertain. They also contended that, in any case, the issue was beyond the scope of addition by way of adjustment/intimation u/s 143(1) of IT Act. They submitted that the additions, therefore, des....
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....Director of Income Tax [2022] 192 ITD 562 (Bangalore-Trib.) for Assessment Year 2019-20 (order dated 13.10.2021 in ITA No.359/Bang./2021); Continental Restaurant and Café Co. vs. Income Tax Officer [2021] 91 ITR (Trib.) (S.N.) 60 (Bangalore) for Assessment Year 2019-20 (order dated 11th October, 2021 of SMC Bench of Bangalore); and TML Business Services Ltd. [2022] 93 ITR (Trib.) (S.N.) 35 (Mumbai) for Assessment Year 2017-18 (order dated 29th Dec., 2021). In the cases of Continental Restaurant and Café Co. vs. ITO (supra), Nikhil Mohine vs. DCIT (Supra), Shand Pipe Industry Pvt. Ltd. vs. DCIT (supra); Digiqal Solution Services Pvt. Ltd. vs. Assistant Director of Income Tax (supra) and Gopalakrishna v/s ADIT (supra), the different Benches of Income Tax Appellate Tribunal have, in fact, specifically considered the aforesaid amendments brought to Income Tax Act by Finance Act, 2021; and have taken the view that the amendments are prospective in nature (i.e. applicable from AY 2021-12 onwards) having no application for the period prior to 01.04.2021 i.e. for assessment years prior to AY 2021-22. Even if Revenue does not accept the view, that the aforesaid amendments are ....
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....e cases of George Williamson (Assam) Ltd. vs. CIT & Anr. [2006] 286 ITR 0533 (Gauhati); Tata Yadogawa Ltd. vs. CIT [2011[] 335 ITR 0053 (Jharkhand); God Granites vs. Central Board of Direct Taxes & Ors. [1996] 218 ITR 0298 (Karnataka); Swamy Distributors vs. ACIT & Ors. [2003] 180 CTR 0290; 139 Taxman 0310 (Karnatka), CIT vs. Eicher Goodearth Ltd. [2008] 296 ITR 0125 (Delhi); Smt. Shanta Chopra vs. ITO [2004] 271 ITR 0132 (Delhi); Kvaverner John Brown Engg. (India) (P.) Ltd. vs. ACIT, [2008] 305 ITR 0103 (Supreme Court). In these present appeals before us, the additions have been made by way of adjustments, vide intimations issued under section 143(1) of Income Tax Act. In view of the foregoing precedents, we are of the view that the aforesaid adjustments made by Revenue u/s 143(1) of IT Act were unfair, unjust, and bad in law. For this view, we also respectfully take support from the order of Agra Bench of ITAT, in the case of Mahadev Cold Storage vs. Jurisdictional Assessing Officer (supra). At the very least, Revenue should have given due consideration to the fact that the issue was highly debatable and controversial. As already discussed earlier, adjustments u/s 143(1) of Incom....