2022 (10) TMI 976

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....ng so, the CIT(A) has erred in concluding that the amendments in Section 36(1)(va) and Section 438 brought in by the Finance Act, 2021 is retrospective; ignoring the submissions made and authorities relied upon by the Appellant which have held the amendments to be prospective. 3. The CIT(A) has also erred in not following the settled principle that when judgments giving different interpretations on an issue are available, the one which is in favour of the Assessee should be applied. 4. In view of the above, the learned CIT (A) be directed to delete the disallowance under section 36(1)(va) of the Act Rs.12,18,871/ B. FAIR AND PROPER OPPORTUNITY OF BEING HEARD NOT GRANTED 5. On the facts and circumstances of the case and in law, the CIT (A) erred in confirming the disallowance under section 36(1)(va) of the Act without giving the Appellant fair and opportunity of being heard and without following the principles and rules of natural justice. 6. The CIT(A) has erred in concluding that the Appellant has not provided any document/evidence that reasonable opportunity of being heard was not provided by the Assessing Officer, without appreciating....

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....as, the assessee has deposited the amount before filing of the return of income u/s. 139(1) of the Act and there is a delay in depositing the employees contribution to provident fund. The assessee has complied with the provisions of Law and deposited the contributions before the due date of filling the Return of income u/s.139(1) of the Act which cannot be disputed. The Ld.DR submitted that the amendment is retrospective applicable. The fact remains that the provisions/explanation was introduced in the Finance Act, 2021 which is effective from 01.04.2021. 6. Considering the rival submissions and overall facts, circumstances, the judicial precedents filed on the similar issue, the Bangalore Bench in the case of M/s. BI Worldwide India Pvt Ltd. v. DCIT in ITA No. 433/Bang/2021 dated 04.01.2022, A.Y.2018-19 has considered the facts and provisions of law has observed at Page No. 3, Para No. 9 & 10 of the order which is read as under and allowed the appeal: "9. We have heard rival submissions and perused the material on record. An identical issue was considered by the Tribunal in the case of The Continental Restaurant & Café Co. v. ITO (supra). The relevant finding of....

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....oyees' contribution on or before the due date, contemplated under the provisions of the PF Act and the PF Scheme, that would have to be treated as income within the meaning of Section 2(24)(x) of the IT Act and in which case, the assessee is liable to pay tax on the said amount treating that as his income, deserves to be rejected. 22. With respect, we find it difficult to endorse the view taken by the Gujarat High Court. WE agree with the view taken by this Court in W.A.No.4077/2013. 23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs." 7.2 The further question is whether the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospective, if it alters or changes the law as it....

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....by assessee stands allowed. 7. Similarly, in the case of Shri Satish Kumar Sinha v. ITO in ITA No. 293/Hyd/2021, A.Y 2019-20 order dated 23.08.2021, the Hyderabad Bench has observed at Para 3.5 as under: - "3.5. We have heard both the parties through video conference and gone through the material placed on record. In the instant case, there is no dispute that the amounts-in-question with regard to EPF and ESI were remitted to the concerned accounts before the due date of filing the return of income u/sn139(1). This, the Tribunal has consistently taken a view that if the PF and ESI are remitted to the respective accounts, the same are required to be allowed as deduction. In the case of KLR Industries Ltd., Vs. DCIT (2017) [83 taxmann.com 322] (Hyd), the Tribunal held as under: "34. The A.O. disallowed the expenditure claimed by observing that the assessee has not remitted the employees contribution to PF and ESI within the prescribed date as mentioned in section 36(1)(va). Though, the assessee did not challenge the disallowance before learned CIT(A) but he raised an additional ground before us challenging the said disallowance. It is the contention of the assess....

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....as dismissed by the Hon'ble Apex Court in (2017) [85 taxmann.com 185].Therefore, taking the consistent view and respectfully following the view taken by the Co-ordinate Bench of the ITAT in the case of KLR Industries Ltd., Vs. DCIT (supra), we hold that no disallowance could be made in respect of employees contribution of PF and ESI if the same are deposited before the due date of filing the return of income. Accordingly, we set aside the order of Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee on this ground is allowed". Respectfully following the same, I set aside the order of the CIT (A) and delete the addition made by the Assessing Officer on this issue". 2. Respectfully following the same, I hold that since the assessee has deposited the Employees Contribution to the PF and ESI before the date of filing the return of income, as per the ITA No. 293 of 2021 Satish Kumar Sinha Hyderabad amended provision applicable to the to the relevant A.Y, the same is not to be disallowed. Assessee's appeal is accordingly allowed. 3. In the result, assessee's appeal is allowed." 8. Respectfully following the above ratio of judicial....