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TMI Blog2021 (10) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ontribution is made on or before due date for furnishing the return of income u/s 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon'ble Karnataka High Court. Whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee deposited with the authorities under the PF and ESI within the due date for filing return of income under section 139(1) of the Act and those payments were beyond the due date as prescribed in the relevant law relating to contribution to PF and ESI. The actual date of payment of PF and ESI by the assessee on the date of payment were as follows: Nature of Fund Amount received from employees Due date of payment as per respective Acts. Actual date of payment Provident fund 2,18,631 15-May-18 22-May-18 Provident fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident fund 52,942 15-Oct-18 16-Jan-19 Provident fund 2,71,802 15-Nov-18 22-Nov-19 Provident fund 33,498 15-Nov-18 18-Jan-19 Provident fund 13,112 15-Dec-18 18-Jan-19 Provident fund 19,455 15-Jan-19 19-Jan-19 ESI 30,177 15-May-18 23-May-18 ESI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 600 15-Mar-19 16-Mar-19 Total 17,92,413 3. Aggrieved by the aforesaid addition made to the total income of the assessee, the assessee preferred appeal before the CIT(A). With regard to employee's share of contribution to PF and ESI, the CIT(A) referred to the amendment made to section 36(1)(va) and 43B of the Act by the Finance Act, 2021. The Finance Act, 2021 has amended section 36, sub-section (1), in clause (va), by inserting Explanation-2 which reads thus: Explanation 2.--For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return. By virtue of insertion of Explanation 5 to this section, the provisions of the said section shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of subclause (x) of clause (24) of section 2 applies. 4. The CIT(A) was of the view that Section 36(1)(va) and section 43B( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith retrospective effect by necessary intendment of deeming nature expressly stated therein. The CIT(A) finally dismissed the appeal of the Assessee. 6. Aggrieved by the order of the CIT(A), the Assessee is in appeal before the Tribunal. We have heard the rival submissions. We find that the issue raised in this appeal whether there could be disallowance of Employees share of ESI/PF paid belatedly as per the due dates laid down in the law relating to contribution of ESI/PF, if the same has nevertheless been paid on or before the due date for filing return of income u/s. 139(1) of the Act, has been decided in favour of the Assessee in the following decisions, holding that there cannot be any such disallowance: M/s. Mahadev Cold Storage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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