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TMI Blog2022 (1) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... n the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case. The addition by way of adjustment while processing the return of income u/s 143(1) so made by the CPC towards the deposit of the employees s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted - Appeal of the assessee is allowed. - ITA No. 252/JP/2021 - - - Dated:- 5-1-2022 - Shri Vijay Pal Rao, Judicial Member For the Assessee : Shri P.C. Parwal (CA) For the Revenue : Smt. Monisha Choudhary (JCIT) ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 15/09/2021 of ld. CIT(A), National Faceless Appeal Centre, Delhi (NFAC) for the A.Y. 2019-20. The assessee has raised following grounds of appeal: 1. The ld. CIT(A), NFAC has erred on facts and in law in confirming the addition of ₹ 10,47,540/- u/s 36(1)(va) on account of delayed payment of employees contribution towards PF. He has further erred in making the addition by not following the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in subsequent decisions have decided this issue in favour of the assessee after considering the said decision in the case of of Vedvan Consultants Pvt. Ltd. (supra). He has relied upon the decision of the Delhi Benches of the Tribunal in the case of Chatru Mal Garg Vs ACIT in ITA No. 850/Del/2021 order dated 29/10/2021. 7. I have considered the rival submissions as well as the relevant material on record. There is no dispute that prior to the amendment brought by the Finance Bill, 2021 in Section 36(1)(va) as well as Section 43B of the Act, the issue of allowability of employees contribution towards PF and ESI and depositing the same in the government account before the due date of filing of return of income U/s 139(1) of the Act was settled and decided in favour of the assessee by various binding precedents of Hon ble High Courts including the Jurisdictional High Court. The limited controversy is whether the amendment brought to Section 36(1)(va) as well as 43B of the Act is applicable retrospective or from assessment year 2021-22 as it is specifically stated in the memorandum of Finance Bill, 2021. At the outset, it is noted that the Coordinate Bench of this Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to ₹ 4,38,530/- so made by the CPC towards the delayed deposit of the employees s contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon ble Rajasthan High Court. 6. In the instant case, admittedly and undisputedly, the employees contribution to ESI and PF collected by the assessee from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id discussions and in the entirety of facts and circumstances of the case and following the consistent decisions taken by the various Benches of the Tribunal, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to ₹ 37,62,586/- so made by the CPC towards the deposit of the employees s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted. Thus, it is clear from the above cited decision that this Tribunal has considered various decisions on this issue and by following decisions of the Coordinate Benches of the Tribunal, this issue was decided in favour of the assessee by holding that amendment in Section 36(1)(va) as well as Section 43B of the Act by way of inserting the explanation vide Finance Bill, 2021 are applicable only from A.Y. 2021-22 and subsequent assessment years and therefore, the said amendment is not applicable to the assessment year under consideration. 8. Similar view has been taken by the Delhi Benches of the Tribunal in the case of Chatru Mal Garg Vs ACIT (supra) in para 7 as under: 7. I have heard the rival sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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