TaxTMI 
TaxTMI 
2022 (9) TMI 344
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....d delayed payment of employees contribution to ESI and EPF. This may please be allowed as deduction. 2. That disallowance of such nature of Rs.10,02,073/- could not have been confirmed by Ld. CIT(A) keeping in view the limited powers as available for making adjustment u/s.143(1) of the Act. 3. That on the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in confirming such adjustment/disallowance of Rs.10,02,073/- in view of the favourable and binding judgments of jurisdictional income Tax Appellate Tribunal and High Courts. 4. That issues which are debatable in nature cannot be subjected to adjustment/disallowance u/s.143(1) of the Act and from this angle also, the Ld. CIT(A) ought not to have confirmed the adjustment/disallowance of Rs.10,02,073/-. 5. That having regard to the facts and the circumstances of the case, the Ld. CIT(A) ought to have quashed the intimation order passed u/s.143(1) by CPC, Bangalore as the jurisdiction was not validly assumed as per law. 6. The appellant craves leave to add, amend, modify any ground(s) of appeal with due permission." 2. At the very outset of the hearing of the appeal, it transpires that th....
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....nouncements that have been pressed into service by the assessee to drive home his aforesaid contentions. 8. Admittedly, it is though a matter of fact borne from record that the assessee had delayed deposit of an amount of Rs.10,02,073/- towards employee's share of contributions towards PF & ESIC i.e. beyond the stipulated time period contemplated under the respective Employees Welfare Act, but had deposited the same prior to the "due date" of filing of its return of income for the year under consideration. Backed by the aforesaid facts, it is the claim of the assessee that now when the amount in question had been deposited prior to the "due date" of filing of its return of income, therefore, no disallowance of the same was called for u/s.43B of the Act. In support of his aforesaid contention, the assessee had pressed into service certain pronouncements/orders of various judicial forums. 9. Per contra, the Ld. 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 t....
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.... Supreme Court in the case of CIT vs. Alom Extrusion Ltd. (319 ITR 306) ?" After referring to the amendments that were made available to Section 43B of the Act, the Hon'ble High Court answered the aforesaid question in the affirmative and upholding the order of the tribunal qua the aforesaid aspect dismissed the appeal filed by the revenue. Also, we find that a similar view had been arrived at by various Hon'ble High Courts, as under :- i. 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 employ....
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.... clearly held that the assessee is entitled to claim deduction of employee's share of ESI & PF u/s.43B of the Act, if the same has been deposited prior to the filing of return of income u/s.139(1) of the Act. From the above judgments of the Hon'ble jurisdictional High Court, it is clear that the Hon'ble Court has not drawn any distinction between the employee's 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 ....