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2022 (6) TMI 401 - AT - Income TaxDelayed employees' contribution towards PF ESI on or before the due date as prescribed by the PF ESI Act - scope of Amendment brought in by Finance Act 2021 w.e.f. 01.04.2021 inserting an Explanation to section 36(1)(va) and section 43B - HELD THAT - As relying on Lumino Industries Ltd 2021 (11) TMI 926 - ITAT KOLKATA we are inclined to allow the appeal of the assessee and direct the A.O. to delete the addition and hold that the Amendment brought in Finance Act 2021 w.e.f. 01.04.2021 by inserting an Explanation to section 36(1)(va) and section 43B of the Act is prospective in nature and would apply from AY 2021-22 onwards. Consequently ground No. 1 is allowed. Non-payment of GST within due date of u/s. 139(1) - As submitted that since the assessee did not get any opportunity to appear before the AO to show the necessary document and its submission since the assessment order was passed by the CPC, Bangalore u/s. 143(1) of the Act and the assessee did not get any opportunity to submit their reply - HELD THAT - Since the assessment order is an ex-parte and no discussion has been made on merits of the case in respect of instant issue. Therefore, interest of justice, we set aside the impugned issue of non-payment of GST within due date prescribed under the Income Tax Act by the assessee u/s. 139(1) and remitted back to the file of the Ld. AO for deciding the issue raised before us by way of a speaking order. We also direct the assessee to remain vigilant in receiving the notices of hearing from the AO and should not request for any adjournment unless otherwise required for reasonable cause and should file all necessary documents at the time of hearing. Needless to mention that the assessee should be given proper opportunity of being heard. The other grounds of appeal are general and consequential in nature and need not to be adjudicated.
Issues Involved:
1. Condonation of delay in filing the appeal before the Tribunal. 2. Disallowance of employees' contribution towards provident fund and GST payment in the assessment order. 3. Jurisdiction of the AO to make adjustments/additions to the returned income. 4. Prospective nature of the Amendment brought in by Finance Act 2021 regarding employees' contribution towards provident fund. 5. Non-payment of GST within the due date under section 139(1) of the Income Tax Act. Issue 1: Condonation of Delay in Filing the Appeal The appellant filed an appeal against the order of the National Faceless Appeal Centre, Delhi, dated 01.04.2021 for A.Y. 2018-19 with a delay of 57 days. The Tribunal, after considering the reasons provided by the appellant, condoned the delay in filing the appeal, as it found a sufficient cause for the delay. Issue 2: Disallowance of Employees' Contribution towards Provident Fund and GST Payment The AO disallowed the employees' contribution towards provident fund and added back an amount for non-payment of GST within the due date under section 139(1) of the Income Tax Act. The appellant challenged these adjustments in the appeal. The Tribunal referred to relevant judicial precedents and held that the Amendment brought in by Finance Act 2021 regarding employees' contribution towards provident fund is prospective in nature and would apply from AY 2021-22 onwards. Consequently, the Tribunal directed the AO to delete the addition related to the employees' contribution towards provident fund. Regarding the non-payment of GST, the Tribunal remitted the issue back to the AO for a fresh decision, emphasizing the importance of providing the appellant with an opportunity to present their case. Issue 3: Jurisdiction of the AO The appellant contended that the AO lacked jurisdiction to make the adjustments/additions to the returned income. However, the Tribunal did not delve deep into this issue as the primary focus was on the specific adjustments made by the AO regarding the employees' contribution towards provident fund and GST payment. Issue 4: Prospective Nature of the Amendment The Tribunal extensively discussed the prospective nature of the Amendment brought in by Finance Act 2021 regarding the employees' contribution towards provident fund. Citing relevant judicial precedents and legislative intent, the Tribunal concluded that the Amendment is prospective in operation and clarified that it would apply from AY 2021-22 onwards. Issue 5: Non-Payment of GST within Due Date The Tribunal acknowledged that the assessment order was ex-parte, and the appellant did not have an opportunity to present their case regarding the non-payment of GST within the due date. Consequently, the Tribunal remitted the issue back to the AO for a fresh decision, emphasizing the importance of providing the appellant with a fair opportunity to submit their reply. In conclusion, the appeal of the assessee was allowed for statistical purposes, with specific directions given to the AO for further consideration of the issues raised in the appeal.
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