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TMI Blog2022 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... d vacate the disallowance made by the A.O. Ground of appeal No. 1 is allowed in favour of assessee. Inadmissible expenses u/s 14A r.w.r.8D - HELD THAT:- We are unable to persuade ourselves to subscribe to the disallowance worked out by the Assessing Officer u/s.14A of the Act, i.e, de-hors any exempt dividend income having been earned by the assessee during the year under consideration. We, thus, direct the Assessing Officer to vacate the disallowance made by him u/s.14A r.w.r 8D. Thus, the Ground of appeal No.2 raised in appeal by the assessee is allowed - ITA No. 312/RPR/2016 - - - Dated:- 30-3-2022 - Shri Ravish Sood, Judicial Member And Shri Jamlappa D Battull, Accountant Member For the Assessee : Shri Abhishek Mahawar, AR For the Revenue : Shri Shravankumar Meena, DR ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the CIT(Appeals)-1, Raipur, dated 15.01.2016, which in turn arises from the order passed by the A.O under Sec.143(3) of the Income-tax Act, 1961 ( in short the Act ) dated 28.03.2014 for assessment year 2011-12. Before us the assessee has assailed the impugned order on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Chhattisgarh Captive Coal Mining Limited, a joint venture company, thus, called upon the assesee to explain as to why corresponding expenditures may not be disallowed by triggering the provisions of section 14A r.w.r.8D. As the reply filed by the assessee did not find favor with the Assessing Officer, therefore, he worked out the disallowance u/s.14A r.w.r.8D at ₹ 13,29,277/-. 7. Before us, it was submitted by the Ld. Authorized Representative (for short AR ) that as the assessee has not earned any exempt dividend income during the year under consideration, therefore, no part of the expenditure in question could have been disallowed u/s.14A of the Act. It was claimed by the Ld. AR that now when the assessee company during the year under consideration had not earned any exempt income, therefore, the authorities below had erred in working out disallowance u/s 14A of the Act. After deliberating at length on the aforesaid issue in question, we find, that as stated by the Ld. AR, and rightly so, now when the assessee company had admittedly not received any exempt income during the year under consideration, therefore, no disallowance u/s.14A could have been made in its ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case, the Hon'ble Tribunal, in law, was right in allowing the claim of the Assessee on account of delayed payments of P.F. Of employees' contribution amounting to ₹ 1,82,77,138/- by relying on the decision of the Hon'ble Supreme Court in the case of CIT vs. Alom Extrusion Ltd. (319 ITR 306) ? After referring to the amendments that were made available to Section 43B of the Act, the Hon ble High Court answered the aforesaid question in the affirmative and upholding the order of the tribunal qua the aforesaid aspect dismissed the appeal filed by the revenue. Also, we find that a similar view had been arrived at by various Hon ble High Courts, as under :- a. CIT Vs. Amil Ltd reported (2010) 321 ITR 508 (Delhi High Court) b. CIT Vs. Hemla Embroidery Mills (P) Ltd. (2014) 366 ITR 167 (P H) c. Bihar State Warehousing Corporation Ltd.Vs. CIT 386 ITR 410 (Patna) d. Sagun Foundary Pvt. Ltd Vs. CIT 145 DTR 265 (All) e. CIT Vs. Mark Auto Industries (2008) 358 ITR 43 (P H) f. CIt Vs. Jaipur Vidyut Vitran Nigam Ltd (2014) 363 ITR 307 (Raj) g. EssaeTeraoka Pvt. Ltd Vs. DCIT (2014)366 ITR 408 (Kar) h. CIT Vs. Vijay Shree Ltd (2014) 43 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction which favours the Assessee must be adopted. The Hon ble jurisdictional High Court in the case of CIT Vs. M/s HemlaEmbroidery Mills (P) Ltd. (366 ITR 167) (P H HC) and in the case of CIT Vs. M/s Mark Auto Industries Ltd. (358 ITR 43) (P H HC) clearly held that the assessee is entitled to claim deduction of employee s share of ESI PF u/s.43B of the Act, if the same has been deposited prior to the filing of return of income u/s.139(1) of the Act. From the above judgments of the Hon ble jurisdictional High Court, it is clear that the Hon ble Court has not drawn any distinction between the employee s and employer s share qua PF ESI contributions. Admittedly there are no contrary judgements of the jurisdictional High Court against the assessee on the aspect under consideration hence, first determination of the Ld. CIT(A) qua non-applicability of the provisions of Section 43B of the Act to the employee s share qua PF ESI, is unsustainable. 5.3 Now, coming to the second aspect/determination made by the CIT(A) to the effect that the amendment made in Section 36(1)(va) and 43B of the Act by Finance Act 2021 has to be considered as clarificatory in nature and having ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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