2022 (9) TMI 1469

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....9-20 respectively. As common grounds of appeal have been raised in these appeals, therefore same were heard together and disposed off by way this consolidated order for convenience. 2. The grounds raised by the assessee in assessment year 2018-19 are reproduced as under: 1. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in disallowing the employees' contribution Rs.11,58,655/- employers' contributions to Provident Fund Rs. 11,58,655/- and PF administration charges Rs. 1,11,145/- aggregating to Rs. 24,28,455/- u/s. 36(1)(va) of the I.T. Act, 1961. 2. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals), without considering the fac....

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....[(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before the due date for filing the return of income of the appellant company cannot be disallowed and added to the income of the appellant company. 6. The Commissioner (Appeal) erred in not considering the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra-virus. 7. Your appellant craves leave to add to, alter, amend or delete any of the foregoing grounds of appeal. 2.1 The grounds....

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....9-20, disallowance is only in respect of employee's contribution to Provident Fund. These disallowances were made by the Central Processing Centre, Bangalore in processing u/s 143(1) of the Income-tax Act, 1961. 3.1 We find that issue-in-dispute is covered in favour of the assessee by the order of the Tribunal in the case of DCIT v. M/s Maharashtra Tourism Development Corporation Ltd. in ITA No. 6425, 6426 & 1140/Mum/2017 for assessment years 2011-12, 2012-3 & 2014-15. The relevant finding of the Tribunal is reproduced as under: "16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is no question of allowance of differential payment of Rs.65,462/- which has never been paid by the assessee and the amount which are....

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....e date of filing of return under section 139(1) of the Act but after the due date prescribed in the relevant statute of provident Fund Act is to be allowed despite the fact that legislation has not only incorporated necessary amendment in section 36(1)(va) of the Act by inserting explanation 2 as well as explanation 5 to section 43B vide Finance Act, 2021 with effect from 01.04.2021, wherein it is clarified that the provisions of section shall not apply and shall be deemed to have been applied to a sum received by assessee from any of his employees covered by section 2(24)(x) of the Act because this explanations are prospective and not retrospective. The relevant Para 2 of the case reads as under: - "2. Coming to the sole substanti....

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.... 2059/M/2021 in the case of M/s Haldiram Foods International Pvt. Ltd. has held that amended provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be effective from the assessment year 2021-22. The relevant finding of the Tribunal is reproduced as under: "11. In view of what has been discussed above, we are of the considered view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable for the year under consideration i.e. A.Y. 2018-19 as the amendment will be effective from A.Y. 2021-22 and the AO/ Ld. CIT(A) have erred in disallowing the same. Resultantly, impugned order passed by Ld. CIT(A) is not sustainable in the eyes of law hence set aside and AO is direc....

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....n 143(1) of Income Tax Act. (f) In the present appeal before us, addition of aforesaid amount of Rs.21,63,304/- has been made by way of adjustments and intimation u/s 143(1) of Income Tax Act, on a debatable and controversial issue, and Ld. CIT(A) did err in law, in not deleting this addition. (E) In the light of the foregoing conclusions in paragraph (D.2.1) of this order, we are of the view that the aforesaid additions of Rs.21,63,304/- by way of adjustment and intimation u/s 143(1) of Income Tax Act were beyond the scope of Section 143(1) of Income Tax Act; and further, that the Ld. CIT(A) erred in law in confirming the aforesaid addition on a debatable and controversial issue. Accordingly, we set aside the impugned app....