TaxTMI 
TaxTMI 
2022 (10) TMI 979
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee has raised six grounds of appeal. However, the solitary grievance of the assessee is that the ld. Pr. CIT has erred in taking cognizance under section 263 of the Income Tax Act and setting aside the assessment order passed under section 147 read with section 143(3) of the Income Tax Act. 3. The ld. Counsel for the assessee, at the very outset, submitted that basic grievance of the ld. Commissioner in taking cognizance under section 263 is that the ld. Assessing Officer failed to disallow an amount of Rs. 8.51 crore, which represents employees contribution towards ESI and PF. According to the ld. Commissioner, this amount was to be added back with the aid of section 36(1)(va) read with section 43B of the Income Tax Act because....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore the Tribunal on 29.10.2021, but both the periods are COVID period. Hence provisions of delay are not applicable in view of the judgment of the Hon'ble Supreme Court dated 23rd September, 2021 in Miscellaneous Application No. 665 of 2021 in SMW(C) No. 3 of 2020. Therefore, practically there is no delay in filing the appeal. 7. As far as merits of the issues are concerned, we find that assessee has made the following payments out of Employee's Contribution towards ESI and PF:- Sl .No. Amount Remarks A 5,78,42,493/- The amount deposited either on 29.04.2015 or 30.04.2015 B 2,72,85,303/- The amount claimed as deposited out date of deposit is not mentioned Total 8,51,27,796/- Refer Annex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1. This aspect has been considered by the Coordinate Bench in the case of Lumino Industries Ltd. -vs.- ACIT (ITA No. 231 & 365/KOL/2021). 2. On the other hand, ld. Sr. D.R. contended that since it is only an early hearing application, he is not possessing the files. But after considering the smallness of the issue involved in the appeals, more so, being covered by the Hon'ble Jurisdictional High Court, we allow this prayer of the assessee for grant of out of turn hearing and take up the appeals for hearing today itself i.e. 2nd August, 2022. 3. We proceed to decide the appeals on merit also. We have recently decided a large number of appeals on this issue. Recently we have considered this aspect in ITA Nos. 531 & 532/K....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the Hon'ble Jurisdictional Calcutta High Court in the case of Shri Vijayshree Ltd. Ltd. (supra), M/s. Philips Carbon Black Ltd. (supra), M/s. Coal India Ltd. (supra), M/s. Akzo Nobel India Ltd. (supra) has held that the payment of employees' contribution if made by an assessee before the due date of filing of return of income u/s. 139(1) of the Act, is allowable as a deduction. We note that by Finance Act, 2021, the provision of Section 36(1)(va) as well as Section 43B has been amended to this extend by inserting the Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the due date under this clause. For ready reference....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. So when we adjudicate whether the view of Ld. CIT(A) that the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the "Notes on Clauses and the relevant clauses 8 & 9 of the Finance Bill, 2021 (supra) pertaining to the issue in hand which in clear and unambiguous terms spells out the intention of Parliament that the amendment shall take effect from 1st April, 2021 and therefore will accordingly apply to Assessment Year 2021-22 and subsequent years. So since the legislative intent is clear, the amendment brought in by Finance Act, 2021 on this issue as discussed is prospective and Ld. CIT(A) erred in holding otherwise. So t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessee and paid to ESI and PF accounts before the due date of filing of the return, then the assessee will be eligible to claim the deduction of such amounts. With the assistance of ld. representatives, we have specifically gone through the record and find that payments have been made within the due dates of filing of the return. With the above observation, these appeals of the assessee are treated as allowed. The disallowances stand deleted in both the appeals". 4. Respectfully following the order of the Coordinate Bench, we allow both the appeals of the assessee and delete the disallowances. 5. In the result, both the appeals of the assessee are allowed. Order pronounced in the open Court on August 02, 2022. Sd....