2022 (5) TMI 1590

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....s permissible u/s 143(1)(a). 2. On the facts and circumstances of the case as well as in law, the Hon'ble CIT(A) has erred in confirming the action of the Asst CIT CPC in making an additional of Rs. 11,36,841/- in respect of gratuity provision written back which was not allowed as deduction in any earlier assessment year. 3. On the facts and circumstances of the case as well as in law, the Hon'ble CIT(A) has erred in confirming the action of the Asst CIT CPC in making an addition of Rs. 10,58,974/- being payment of employees contribution for PF and ESIC made after the due date of the respective law but paid before due date of filing of income tax return. 4. Without prejudice to the above, on the facts and circumstances of the case ....

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....l. 5. At the time of hearing, the Ld. AR of the assessee submitted that the CIT(A) has not considered the facts, law and the assessee is governed by the law applicable to said assessment year. Whereas the amended provisions/explanations are with effect from F.Y 01-04-2021.The Ld.AR relied on the judicial decisions and prayed for allowing the appeal. 6. Contra, the Ld. DR submitted that the explanation 2 to Sec 36(1)(va) of the Act in finance Act 2021 was introduced and the amendment is applicable to the earlier years and supported the order of the CIT(A) appeal. 7. We heard the rival submissions and perused the material available on record. The ld. AR's contentions are that the assessee for the various reasons could not deposit the emplo....

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....39;s account in the relevant fund under any Act, rule, order or notification issued thereunder or under any standing order, award, contract of service or otherwise", one cannot find fault in what has been reported in the tax audit report. It is not even an expression of opinion about the allowability of deduction or otherwise; it is just a factual report about the fact of payments and the fact of the due date as per the Explanation to Section 36(1)(va). This due date, however, has not been found to be decisive in the light of the law laid down by Hon'ble Courts above, and it cannot, therefore, be said that the reporting of payment beyond this due date in the tax audit report constituted "disallowance of expenditure indicated in the audi....

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....1) and that we see no need to deal with the question, which is rather academic in the present context, as to whether if such an adjustment was to be permissible in the scheme of Section 143(1), whether the insertion of Explanation 2 to Section 36(1)(va), with effect from 1st April 2021, must mean that so far as the assessment years prior to the assessment years 2021-22 are concerned, the provisions of Section 43B cannot be applied for determining the due date under Explanation (now Explanation 1) to Section 36(1)(va). That question, in our humble understanding, can be relevant, for example, when a call is required to be taken on merits in respect of an assessment under section 143(3) or under section 143(3) r.w.s. 147 of the Act, or when no....