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TMI Blog2022 (3) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s. 154/254(2), even where rendered after the date of the order sought to be rectified. See SAURASHTRA KUTCH STOCK EXCHANGE LTD [ 2008 (9) TMI 11 - SUPREME COURT] and SMT. ARUNA LUTHRA. [ 2001 (8) TMI 84 - PUNJAB AND HARYANA HIGH COURT] No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine [ 2021 (11) TMI 927 - ITAT JABALPUR] 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. The impugned additions, therefore, could not have been made under the given fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income u/s. 139(1) of the Act for the relevant years. He would, toward the same, take us to the audit report u/s. 44AB of the Ac for both the years (at PB pgs. 12-14). The addition, being debatable, could not have been made under section 143(1), even as clarified by the Hon'ble jurisdictional High Court in CIT v. Shikarchand Jain [2003] 263 ITR 221 (MP); CIT v. GEI Engineering Ltd. [2009] 310 ITR 112 (MP), as indeed by the Tribunal in Nikhil Mohine v. Dy. CIT (in ITA Nos. 37 38/Jab/2021, dated 18.11.2021/PB pg. 17), a decision which is squarely on the point, and on which the assessee places total reliance. He, on being inquired by the Bench, stated of there being no decision by the Hon'ble jurisdictional High Court to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 scope of an adjustment u/s. 143(1)(a) (or an amendment u/s. 154), the same could not be decided on merits. The decisions by the Hon'ble High Courts holding the employee's contribution as being covered by s. 43B(b), implying, in context, u/s. 37(1) r/w s. 43B(b), which were aplenty (para 5.2 of the impugned order), it opined, could be validated only by disregarding the clear language of the relevant provisions, upheld constitutionally and not read down. The said decisions must nevertheless be respected, so that, there being no decision by the Hon'ble jurisdictional High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act 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 retrospectivity, i.e., if a provision could be construed without the aid of the subsequent amendment thereto to take within its ambit the said amendment, the issue was also examined by the Tribunal on merits, i.e., for the said limited purpose, to find that the view canvassed by or on the assessee's behalf could be sustained only by ignoring the existence of s. 36(1)(va) - which governs the deductibility of the employees' contribution to the employee welfare funds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and which (view) the Explanations to ss. 36(1)(va) and 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. 3.2. The said Explanations, the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Explanations themselves stand proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, with a view to, as explained, settle the controversy arising due to the contrary view expressed by some High Courts, for which reference may be made to para 5.4 of the Tribunal's order (also refer paras 3.1 3.2 above). There is, accordingly, no question of the same being given a retrospective effect. 4.2. There is, in view of the foregoing, no question of the said Explanations being read as retrospective, so as to apply for the relevant years, sustaining the impugned additions, which therefore fail. This is, however, subject to any decision/s by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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