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TMI Blog2021 (10) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... ade prior to the due date of filing of return of income u/s. 139(1). Whether the amendment to section 36(1)(va) and 43B of the I.T. Act by Finance Act, 2021 is clarificatory and declaratory in nature? - Supreme Court in the recent judgment in the case of M.M. Aqua Technologies Limited v. CIT [ 2021 (8) TMI 520 - SUPREME COURT] had held that retrospective provision in a taxing Act which is for the removal of doubts cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood - amendment brought about by the Finance Act, 2021 to section 36(1)(va) and 43B of the I.T. Act, alters the position of law adversely to the assessee. Therefore, such amendment cannot be held to be retrospective in nature. Even otherwise, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed without following the legal precedence is bad in law and therefore liable to be quashed. 3. The learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre should have, by following the principles laid down for binding precedence allowed the appeal. On the contrary, the dismissal of appeal despite binding judicial precedence makes the impugned order bad in law and liable to be quashed. 4. In any case and without prejudice, the learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre has erred in confirming the adjustment u/s. 143(1)(a) as done by CPC. The adjustment done by CPC in the intimation being beyond the purview of section 143(1)(a) and the adjustment being not prima facie adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in levying interest u/s. 234B & 234C of the Act. The appellant denies his liability to pay interest as levied. The interest levied being erroneous are to be deleted. 7. In view of the above and on other grounds to be adduced at the time of hearing, it is requested that the order passed u/s. 250 of the Act be quashed or at least the addition made to the income be deleted." 3. The brief facts of the case are as follows: The assessee is a partnership firm. The return of income was filed on 30.10.2019 declaring total income of ₹ 75,21,320. An intimation dated 16.04.2020 u/s. 143(1) of the I.T. Act was issued wherein sum of ₹ 71,677 was disallowed u/s. 36(1)(va) of the I.T. Act for the reason that employees' contribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 408 (Kar.) has categorically held that the assessee would be entitled to deduction of employees' contribution to ESI provided the payment was made prior to the due date of filing of return of income u/s. 139(1) of the I.T. Act. The Hon'ble jurisdictional High Court differed with the judgment of the Hon'ble Gujarat High Court in the case of CIT v. Gujarat State Road Transport Corporation reported in 366 ITR 170 (Guj.). The Hon'ble High Court was considering following substantial question of law:- "Whether in law, the Tribunal was justified in affirming the finding of Assessing Officer in denying the appellant's claim of deductions of the employees contribution to PF/ESI alleging that the payment was not made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gujarat High Court. WE agree with the view taken by this Court in W.A. No. 4077/2013. 23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs." 7.2. The further question is whether the amendment to section 36(1)(va) and 43B of the I.T. Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M. Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is "for the removal of doubts" cannot be presumed to be retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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