2022 (10) TMI 1028

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....RED IN MAKING ADDITION OF Rs. 40,42,609.00 UNDER SECTION 36 (1)(va) OF THE INCOME TAX ACT, 1961. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION UNDER SECTION 36 (1) (va) OF THE INCOME TAX ACT, 1961 EVEN THOUGH THE APPELLANT HAS PLACED RELIANCE UPON THE JUDICIAL PRONOUNCEMENT IN WHICH IT HAS BEEN CATEGORICALLY HELD THAT THE AMENDMENT UNDER SECTION 43B IS APPLICABLE FROM THE ASSESSMENT YEAR 2020-21. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT FOLLOWING THE JURISDICTIONAL HIGH COURT RELIED UPON BY THE APPELLANT. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT PROVIDING THE PROPER OPPORTUNITY TO THE APPELLANT BEFORE ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he Act, the claim of the assessee was not allowable, therefore, the ld.CIT(A) was right in confirming the addition. He also drew our attention to relevant para 8.1 to 11 of the first appellate order and submitted that the appeal of the assessee may kindly be dismissed. 6. On careful consideration of the above rival submissions, we note that the coordinate Bench of ITAT Kolkata, has considered this aspect in the case of Shrachi Burdwan Developers (P) Ltd. vs. DCIT, order dated 09.03.2022, in ITAs No.513 & 532/Kol/2021, wherein the coordinate Bench took note of the earlier order of ITAT, Kolkata in the case of Lumino Industries Ltd. vs. ACIT, ITA No.231 & 365/Kol/2021, whereby the Tribunal considered the impact of the amendment brought to ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....India Ltd.(supra), M/s Akzo Nobel In dia 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 3 6(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, we reproduce the Explanation 2 to Section 36(1 )(va) as under: "Section 36(1 )(va) Explanation2 For the removal of doubts, it is hereby c....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 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 1 st April, 2021 and therefore will accordingly apply to Assessment Year 2021 subse22 and quent 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 till AY 2021a 22, the Jurisdictional High Court's view in favor of ssessee will hold good and is binding on us. As discussed the decision of the Hon'ble Delhi High Court in Bharat Hotels Ltd. (su....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e 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". 7. In view of the foregoing, we are in agreement with the view taken by the coordinate Bench of Kolkata in the case of Lumino industries Ltd. (supra) that the amendment brought to the statute by Finance Act 2021 is applicable from AY 2020-21 onwards and the present appeal pertains to AY 2018-19. In the present case, undisputedly, the assessee deposited amount of ESI & PF before due date of filing of return and impugned disallowance has been made by CPC while processing the return of income u/s 143(1) ....