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TMI Blog2021 (12) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... w. e. f. assessment year 2021 - 22 and subsequent assessment years and the impugned assessment year being assessment year 2018- 19, the said amendment cannot be applied in the instant case. Therefore the addition made by way of adjustment while processing the return of income u/s 143 (1) of the Act, amounting to ₹ 11,99,710/- so made by the CPC towards the deposit of employees contribution towards ESI and PF paid before the due date of filing of the return of income u/s 139 (1) of the Act, is hereby directed to be deleted. - Decided in favour of assessee. - ITA Nos. 185 And 193/Chd/2021 - - - Dated:- 15-12-2021 - Shri Sudhanshu Sriivastava, Judicial Member And Shri Vikram Singh Yadav, Accountant Member For the Assessee : Shri Parikshit Aggarwal, CA For the Revenue : Smt.Priyanka Dhar, Sr.DR ORDER PER VIKRAM SINGH YADAV, ACCOUNTANT MEMBER: These are two appeals filed by the assessee against the order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre Delhi [ in short the Ld. CIT(A), NFAC ] Delhi, passed u/s 250 of the Income Tax Act, 1961 (in short the Act ) dated 06.07.2021 for assessment year 2018-19 and dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken a similar view in the case of M/s Pee Tee Turners Vs. Assistant Director of CPC, ITA No. 105/JP/2021, dated 28.10. 2021 wherein the relevant findings read as under: 5. We have heard the rival contentions and purused the material available on record. In case of Mohangarh Engineers and Construction Company vs DCIT, CPC (Supra), speaking through one of us, we have extensively dealt with the identical matter relating to employee's contribution towards ESI/PF and our findings therein read as under: 13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees's contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04,2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputed//, the employees's contribution to ESI and PF which have been collected by the assessee from its employees have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec. 43B starts with a notwithstanding clause would thus override Sec. 36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under Section 139 is permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduct/on but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant case, admittedly and undisputedly, the employees' contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, the Id D/R has referred to the explanation to section 36(l)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, we find that there are express wordings in the said memorandum which says these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years . In the instant case, the impugned assessment year is assessment year 2019-20 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- 7. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has always been very clear that employees contribution to specified fund will not be allowed as deduction u/s 36 (1) (va) of the Act if there is delay in deposit even by a single day as per the due dates specified in the respective Statutes. It was further submitted that the said amendment is only declaratory/clarificatory in nature and, is, therefore, applicable with retrospective effect by necessary intendment of deeming nature expressly stated therein. The Ld. DR accordingly submitted that in view of the unambiguous wording of the now amendment provisions of sections 36 (1) (va) and 43 B, it is clear that the employees contribution can be allowed as a deduction only if it had been paid within the prescribed due dates under the relevant Statutes and this position has been clarified by the aforesaid amendment. It was accordingly submitted that there is no infirmity in the order passed by the Ld.CIT(A) wherein he has sustained the disallowance made u/s 143 (1) of the Act, by the CPC on account of assessee s failure to pay the employees contribution towards ESI and PF within the prescribed due dates as per section 36(1) (va) of the Act. He accordingly supported the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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