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TMI Blog2021 (12) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... ious other reasons and hence the same may kindly be quashed. 2. The ld.CIT(A) has grossly erred in law as well as on the facts of the case in sustaining the disallowance of Rs. 11,39,506/- u/s 36(1)(va) on account of employee contribution to PF and ESI made by the ld.AO without any basis and opportunity. Hence the addition / disallowance so made by the ld.AO and confirmed by the ld.CIT(A) is being totally contrary to the provisions of law and facts on the record may be kindly be deleted in full. 3. The ld.AO has grossly erred in law as well as on the facts of the case in charging interest u/s 234A, B, C. The appellant totally denies it liability of charging of any such interest. The interest, so charged, being contrary to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SI and held that only employers contribution to PF and ESI is entitled to deduction u/s 43B of the I.T.Act, if the same is paid prior to due date of filing of return of income u/s 139(1) of the Act. It was further held that the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and has got retrospective operation. 5. Aggrieved, assessee has filed this appeal before the Tribunal. The learned AR submitted that an identical issue was decided in favour of the assessee by the Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DICT in ITA No.385/Bang/2021 (order dated 21.10.2021). 6. The learned Departmental Representative supported the orders of the Income Tax Authorities. 7. We have heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appellant in accordance with the provisions u/s 36[1][va] of the I.T.Act?" 7.1 In deciding the above substantial question of law, the Hon'ble High Court rendered the following findings:- "20. Paragraph-38 of the PF Scheme provides for Mode of payment of contributions. As provided in sub para (1), the employer shall, before paying the member, his wages, deduct his contribution from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution to ESI, if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amendment brought about b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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