9911796707
TMI Blog2022 (4) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of return in terms of section 139(1), there is no case of any disallowance u/s 36(l)(va) of the Income Tax Act, 1961 as per settled legal position. (iii) That the amendment brought in vide Finance Act 2021 in section 36(l)(va) having prospective effect and being operative from 01/04/2021 as explicitly clarified in the Explanatory notes, the CIT(A) was not justified in upholding the disallowance even though the said amendment was not applicable in the year under reference. 2(i) That the claim of deduction u/s 36(l)(va) being in accordance with decision of Jurisdictional High Court, the adjustment made by CPC u/s 143(1) is illegal and without jurisdiction. (ii) That the adjustment made vide intimation u/s 143(1) is without proper opportunity and in disregard to principles of natural justice. 3. That the orders passed by lower authorities are not justified on facts and same are bad in law." (B) The only addition in dispute in this appeal is regarding the additions amounting to total of Rs. 1,71,75,434/- made u/s 36(1)(va) of Income Tax Act. These payments by way of employees' contribution to ESI/Provident Fund were deposited by the assessee after the specified date prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or deleted. We are aware about amendments to section 36(1)(va) and 43B of Income Tax Act, brought into effect by Finance Act, 2021. As regards whether these amendments are prospective in nature and applicable with effect from 01.04.2021 or retrospective in nature having applicability even before 01.04.2021; it may be mentioned that the present appeal before us pertains to Assessment Year 2017-18; which is before 01.04.2021. We are aware of some reported orders of ITAT, passed after the aforesaid amendments were brought in by Finance Act, 2021; in which the issue in dispute for Assessment Years prior to Assessment Year 2021-22 (i.e. for periods before 01.04.2021) has been decided in favour of the assessee and against Revenue. Some such decisions are: Digiqal Solution Services Pvt. Ltd. vs. Assistant Director of Income Tax [2021] 92 ITR (Tribunal) 404 (Chandigarh) for Assessment Year 2019-20 (order dated 4th October, 2021); Shand Pipe Industry Pvt. Ltd. vs. DCIT (CPC), [2022] 93 ITR (Trib.) 54 (Bangalore) for Assessment Year 2018-19 (order dated 27th Dec., 2021); Mahadev Cold Storage vs. Jurisdictional Assessing Officer [2021] 190 ITD 273 for Assessment Year 2018-19 and 2019-20 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins. Accordingly, the view taken by Hon'ble Delhi High Court in these cases, that delayed payments of employees contribution of provident fund and ESI [payment made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s 139(1) of Income Tax Act] does not constitute assessee's income, will continue to hold good for Assessment Year 2017-18, to which this appeal pertains. In such a scenario, the aforesaid additions of Rs. 1,71,75,434/- have no legs to stand; and the same deserves to be deleted. If, however, the contrary view advanced by Revenue is taken, that the aforesaid amendments are retrospective; then the question that will arise is whether such a debatable and controversial view can be invoked for making adjustments u/s 143(1) of Income Tax as per the intimation issued to the assessee u/s 143(1) of Income Tax Act. (D.1.2) It is well settled that any adjustments u/s 143(1) of Income Tax Act by way of intimation u/s 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of Section 143(1) of Income Tax Act. In this regard, we respectfully mention the order of Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), in which similar view has been taken. (D.2) Further, it is also well settled that retrospective amendment cannot be invoked to make addition by way of adjustment and intimation u/s 143(1) of Income Tax Act. This view was taken by the Hon'ble Supreme Court in the case of CIT vs. Hindustan Electro Graphites Ltd. [2000] 243 ITR 0048 (SC), in which the view of Hon'ble Kolkata High Court in the case of Modern Fibotex India Ltd. & Anr. Vs. DCIT & Ors.[1995] 212 ITR 0496 (Calcutta) was approved. Same view was taken by the Hon'ble Madhya Pradesh High Court in the case of CIT vs. Satish Traders [2001] 247 ITR 0119 (Madhya Pradesh). (D.2.1) In view of foregoing discussion, we come to the following conclusions: (a) The fact that payments amounting to aforesaid Rs. 1,71,75,434/- by way of employees contribution to provident fund and ESI were made by the assessee after stipulated date prescribed under the relevant laws governing provident fund and ESI, but before the due date of filing of return of income prescribed u/s 139(1) of Income Tax Act; is not in dispute. (b) Whether the aforesaid amendments to Income Tax Act by way of Finance Act, 2021 are retrospective or prospective, is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
