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TMI Blog2021 (12) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961 ('the Act' hereinafter) for the Assessment Year (AY) 2018-19 vide Intimation dated 22/8/2019. The Arguments 2. At the outset, the ld. counsel for the assessee, Sh. Jain, would submit that the instant appeal, arising out of a processing of the assessee's return u/s. 143(1) effecting additions in respect of the employee's contribution to the employee welfare funds u/s. 2(24)(x) r/w s. 36(va), despite being deposited before the due date of filing the return of income u/s. 139 (1) for the relevant year, is squarely covered in the assessee's favour by the order by the Jabalpur Bench of the Tribunal in Nikhil Mohine vs. Dy. CIT (ITA Nos. 37 & 38/Jab/2021, dated 18.11.2021). The Tribunal in the said case, he continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,818) to the assessee's returned income u/s. 143(1)(a) as the same stood deposited beyond the due date specified u/s. 36(1)(va), even as, admittedly, prior to the due date of filing the return of income u/s. 139(1) for the relevant year. Reliance stands placed by it on the decisions in CIT v. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj), CIT v. Merchem Ltd. [2015] 378 ITR 443 (Kerala); and Unifac Management Services (India) P. Ltd. v. Asst. CIT [2018] 409 ITR 225 (Mad). The matter stands examined at length by the Tribunal in Nikhil Mohine (supra), relied upon by the appellant, wherein, noticing, inter alia, the cited decisions, it held that in view of the cleavage of judicial opinion in the matter and the limited sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in view of the express language deeming the stated position as applicable since inception; that being the reason for bringing the Explanations on the statute, as the amendments could otherwise have been effected through prospective clause/s to the relevant provisions. Rather, the tenor of the language employed, clearly giving the stated position a retrospective effect, necessarily requires the Explanations to be read as inserted from a later date. That is, the fact of insertion of the said Explanations w.e.f. a later date is consistent with the language giving it a retrospective effect and, thus, does not impinge adversely on it being regarded as so. Further still, noticing the settled legal position qua the test for determining retros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viewed from any angle, wholly untenable. The view expressed by the Tribunal is in fact in agreement with that projected by the Board per its Circular (No. 22/2015, dtd. 17/12/2015), as also that canvassed per the impugned order with reference to the cited decisions, both explaining, as did the Explanatory Notes on the insertion of s. 36(1)(va) on the statute, the object of the said provision. It is this view, which in fact, as also noticed by the Tribunal, represented the uniform view across all the Hon'ble Courts prior to the deletion of the second proviso to s. 43B by Finance Act, 2003, w.e.f. 01/4/2004, which the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would, where so, hold, even justifying a rectification u/s. 154/254(2), even where rendered after the date of the order sought to be rectified (Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC); CIT v. Aruna Luthra [2001] 252 ITR 76 (P&H)(FB)). No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine (supra). Any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. 4.3. The impugned additions, therefore, could not have been made under the given fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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