TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 1172
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....ified in the relevant statutes. Aggrieved with the same the assessee filed appeal before the Id. CIT(A) confirmed the addition of 242.22/723/- made by the AO u/s 36(1)(va) of the Act. Further, aggrieved with the decision of the Id. CIT(A) the assessee preferred appeal before Hon'ble ITAT. The Hon'ble ITAT vide appellate order dated 12/05/2022 received in this office on 18/10/2022, in the appeal No.37/JP/2022 has allowed the appeal of the assessee by deleting the addition of 242,22.723/-made by the AO u/s 36(1)(va) of the Act holding that the assessee paid the same before filing of return of Income u/s 139(1) of the Act. The Hon'ble ITAT has placed reliance upon the Coordinate Banglore Bench in the case of Shri Gopalkrishna Aswini Kuamr Vs. ACIT wherein the Hon'ble Banglore Bench placed reliance upon the Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt Ltd. and applied the provision of section 36(1)(va) read with section 438 as amended by the Finance Act, 2021 by inserting explanation 2 is prospective and not retrospective which is applicable w.ef AY-2021- 2022 and the instant case pertains to the AY- 2018-19. The decision of the Hon'ble IT....
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....t of subsequent interpretation of the law by the Hon'ble Supreme Court which is a mistake apparent and prayed for rectification u/s 254(2) of the Act, by recalling the subjected ITAT order. Submission: 1. M.A. by AO not maintainable - being barred by limitations: 1.1 At the outset it is submitted that the M.A. in this case has been filed on 15.02.2023 in relation to the / subjecting to the ITAT Order dt. 12.05.2022. The amended law of S 254 (2) provides that, a Misc. Application to be necessarily filed within a period of 6 months, from the end of the month in which the order has been passed. In the instant case the ITAT passed the order form 12.05.2022 hence the period of 6 months had already expired on 30.11.2022 against which, the M.A. has been filed only on 15.02.2023 thus, there has been delay of 77 days. Pertinently, the Revenue itself had admitted the fact of delayed filing of the M.A. vide their letter No. 8883 dt. 14.02.2023. The statutory period of limitations has been provided in the Act itself without any relaxation or discretion conferred on the ITAT to condone the delay, if any in filing the MA. Consequently, the Tribunal has no jurisdiction/the power to c....
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.... u/s 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of Section 143[1] of Income Tax Act. In this regard, we place reliance on the cases of ACIT vs Haryana Telecom Pvt. Ltd. 14 taxman.com 122 (Delhi), George Williamson (Assam) Ltd vs CIT & Anr: 12006) 286 ITR 0533 (Gauhati), Tata Yadogawa Ltd. vs CIT [2011] 335 ITR 0053 Jharkhand), God Granites vs. Central Board of Direct Taxes & Ors. [1996] 218 ITR 0298 (Karnataka); Swamy Distributors vs ACIT & Ors. [2003] 180 CTR 0290: 139 Taxman 0310 (Karnatka), CIT vs. Eicher Goodearth Ltd. [2008] 296 ITR 0125 (Delhi: Smt. Shanta Chopra vs. ITO [2004] 271 ITR 0132 (Delhi): Kvaverner John Brown Engg. (India) (P) Ltd vs. ACIT, [2008] 305 ITR 0103 (Supreme Court). In the present case the addition had been made by way of adjustments, vide intimations issued under section 143(1) of Income Tax Act. Hence, the aforesaid adjustments made by the AO u/s 143(1) of IT Act were unjust and bad in law, 4. Further, it is also well settled that retrospective amendment cannot be invoked to make addition by way of adjustment and intimation u/s 14311) of Income Tax Act This view was taken by the Hon ble Supreme Court in the ....
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....d. (2000) 243 ITR 0048 (SC) (DPB 3. 8) which has affirmed the decision in the case of Modern Fibotex India Ltd. & Anr Vs. DCIT & Ors. [1995] 212 ITR 0496 (Calcutta) (DPB 9-20). However, in the case of Savleen Kaur (supra) there is absolute no reference to this settled legal position hence, Savleen Kaur is not a Good Law so also the other decisions of Hon'ble Tribunals u/s 143(1)(a) r/w s. 36(1)(va) being cite by the Revenue.'' 2.2 At the outset of the hearing, the Bench noted that there is delay of 76 days in filing the Misc. Application by the Department for which the Department mentioned the reason of delayed receipt of appellate order in the office of PCIT and consequent delay in receiving revised CSR. 2.3 On the other hand, the ld. AR of the assessee objected to such delay of 76 days in filing the Misc. Application by the Department and submitted that the M.A. is filed on 15-02-2023 by the Department i.e. after the 2.5 months of order passed in assessee's case. It is further submitted that as per the provisions of Section 254(2) of the I.T. Act, the Hon'ble Bench may amend the order within a period of six months from the end of the month in which the order is passed and ....
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....ter extensively examining the matter and considering the various decisions of the Hon'ble Supreme Court and various other High Courts has decided the matter in favour of the assessee. In the said decision, the Hon'ble High Court was pleased to held as under: "20. On perusal of Sec.36(1)(va) and Sec.43(B)(b) and analyzing the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint ....
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....ion has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corportation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon'ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon'ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon'ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer u....
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....od prior to 01.04.2021 also. On this aspect, we find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted." 7. In light of the aforesaid discussions and in the entirety of facts and circumstances of the case and following the consistent decisions taken by the various Benches of the Tribunal, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 42,22,723/- made by the CPC towards the deposit of the employee's contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of t....