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2022 (10) TMI 170
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....timation dated 28.3.2021 u/s 143(1) of the Act. 3 That even otherwise the adjustment so made in any intimation u/s 143(1) of the Act of a debatable and contentious issue is impermissible and thus untenable. 4 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that intimation dated 2.10.2019 was made without granting opportunity much less fair meaningful and effective opportunity and therefore such an intimation is otherwise vitiated. 5 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that intimation dated 2.10.2019 was made without jurisdiction; and therefore deserves to be quashed as such. 6 That various findings and, observations recorded by the learned Commissioner of Income Tax (Appeals) are based on surmises, conjectures and suspicion; and factually incorrect, legally misconceived and, in fact in disregard of binding judgment of jurisdictional High Court and; thus untenable. Prayer: It is therefore, prayed that, it be held that adjustments made are without jurisdiction. It be further held that disallowances made and upheld by the learned Commissioner of Income Tax (Appeals) b....
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....Act, but, from a vigilant and careful reading of the first appellate order, we are unable to see any adjudication by the ld.CIT(A) on ground No.1 of the appellant. Therefore, agreeing with the contentions of the ld. Sr. DR, ground No.1 of the assessee as noted in Form No.35 is restored to the file of the CIT(A) for adjudication. Accordingly, ground No.1 of the assessee is allowed for statistical purposes. 6. Apropos ground No.2, the ld. counsel of the assessee, placing reliance on the judgement of the Hon'le jurisdictional High Court in the case of PCIT vs. TV Today Network Ltd., reported as (2022) 328 CTR 0204 (Del) and the judgement in the case of CIT vs. AIMIL Ltd., 321 ITR 508 (Del), submitted that despite the fact that the assessee paid the entire employee contribution towards ESI and PF before filing of the return u/s 139(1) of the Act, the ld.CIT(A) dismissed the contention of the assessee on the strength of amendment in section 36(1)(va) and section 43B of the Act by holding that these provisions are retrospectively applicable to the present AY 2018-19 also. The ld. AR, drawing our attention to paras 35-46, submitted that the Hon'ble jurisdictional High Court has categor....
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.... vs. AIMIL Limited in ITA No. 1063/2008 whereby a Division Bench of this Court was dealing with the issue whether the tribunal was correct in law deleting the addition relating to employees' contribution towards the Provident Fund and the Employees State Insurance contribution made by the assessing officer under Section 36(1)(va) of the Act. The Division Bench, as is evident from the order, referred to the clause (v) of sub-section (1) of Section 36 and thereafter to clause (va) of the same and scanned the anatomy of 43B and referred to the decision in Vinay Cement Ltd. (supra) and relied on the decision in P.M. Electronics Ltd.(supra) wherein the substantial questions of law were framed, inter alia, whether the amounts paid on account of PF/ESI after due date are allowable in view of Section 43B read with Section 36(1)(va) of the Act and proceeded to hold as follows: "We may only add that if the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the E....
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.... deposit this contribution with provident fund/ESI authorities, it will be taxed as income at the hands of the assessee. However, on making deposit with the concerned authorities, the assessee becomes entitled to deduction under the provisions of Section 36(1)(va) of the Act. Section 43B(b), however, stipulates that such deduction would be permissible only on actual payment. This is the scheme of the Act for making an assessee entitled to get deduction from income insofar as employees' contribution is concerned. It is in this backdrop we have to determine as to at what point of time this payment is to be actually made." 8. Upon perusal of the aforesaid, we are of the considered opinion that the decisions rendered in P.M. Electronics Ltd.(supra) and AIMIL Limited (supra) have correctly laid down the law and there is no justification or reason to differ with the same. In the result, we do not perceive any merit in this appeal and accordingly the same stands dismissed . (Emphasis supplied) 35. Learned counsel for assessee has also drawn out attention to the order dated 10th September, 2018 passed in ITA No. 983/2018 in the case of PR. Commissioner of Income Tax-7 vs.....
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....ance Act, 2003, he still confirmed the addition made by the Assessing Officer on the ground that no documentary proof was given to support that payment was in fact made by the assessee. The assessee filed an application under section 154 of the Act before the Commissioner of Incometax (Appeals) for rectification of the mistake. After having satisfied that payment had, in fact, been made, the Commissioner of Income-tax (Appeals) rectified the mistake and deleted the addition by holding that the assessee had made the payment before the due date of filing of the return, which was a fact apparent from the record. It was now the turn of the Revenue to feel agitated by these orders and, therefore, the Revenue approached the Income-tax Appellate Tribunal (ITAT) challenging the orders of the Commissioner of Income-tax (Appeals). The Department has, however, remained unsuccessful as the appeal preferred by the Department is dismissed by the Income-tax Appellate Tribunal vide its impugned decision dated December 31, 2007, which is the subject-matter of appeal before us. 17. It also becomes clear that deletion of the second proviso is treated as retrospective in nature and would not ....
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....mployees to which the provisions of sub-clause (x) of clause (24) of section 2 applies.] (Emphasis supplied) 39. He contends that with the insertion of this explanation there can be no doubt that 'due date' for the purpose of deposit under Section 36(1)(va) of the Act is to be the 'due date' on which the employee contribution was required to be deposited under the relevant statute and the 'due date' referred to under Section 43B of the Act would have no application. Thus, the deposit made by assessee on 25.04.2012 has been correctly disallowed by the AO. 40. The said contention is noted to be rejected since it is contrary to the plain text of the Memorandum of the Finance Bill, 2021 proposing the said amendment. The relevant extract of Clauses 8 and 9 of the Memorandum of the Finance Bill 2021 explaining the proposed insertion reads as under : "Though section 43B of the Act covers only employer's contribution and does not cover employee contribution, some courts have applied the provision of section 43B on employee contribution as well. There is a distinction between employer contribution and employee's contribution towards welfare....
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....e court in Sedco Forex International Drill. Inc. Vs. CIT reported in (2005) 12 SCC 717 and M.M. Aqua Technologies Ltd. vs. Commissioner of Income Tax, Delhi-III reported in 2021 SCC OnLine SC 575 has held that a provision in a Tax Act which is "for the removal of doubts" cannot be presumed to be retrospective, even where such language is used, if it alters or changes the law as it earlier stood. The Supreme Court further held that a cardinal principal of tax law is that for the law to be applied it has to be in force during the relevant assessment years unless otherwise provided expressly or by necessary implication. In that view it was held by the Supreme Court that the amendment was not retrospective. 43. As noted above, this court has as early as in the case of AIMIL Ltd. (supra) dated 23rd December, 2009 held that the due date for the purpose of Section 36 (1) (va) of the Act would be the due date as provided under Section 43B of the Act and not the relevant Labour statute. This law as noted above has held the field till date, followed by this Court consistently and the appellate authorities below have determined the matter in accordance with the said law. 44.....