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TMI Blog2022 (2) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No. Name of Case CIT(Appeal/s) Order dt. 1. ITA No. 160/JP/2022 Sulekha Agarwal CIT(A), NFAC, Delhi 30/07/2021 2. ITA No. 161/JP/2022 Sulekha Agarwal CIT(A), NFAC, Delhi 30/07/2021 3. ITA No. 294/JP/2021 M/s Guru Nanak Workshop Services P Ltd. CIT(A), NFAC, Delhi 03/11/2021 4. ITA No. 293/JP/2021 M/s Kogta Financial (India) Ltd. CIT(A), NFAC, Delhi 25/11/2021 5. ITA No. 258/JP/2021 M/s Diwakars Employement Pvt. Ltd. CIT(A), NFAC, Delhi 23/09/2021 6. ITA No. 225/JP/2021 Sarda Industrial enterprises CIT(A), NFAC, Delhi 11/08/2021 7. ITA No. 224/JP/2021 Kamal Kishore Sarda CIT(A), NFAC, Delhi 04/08/2021 8. ITA No. 170/JP/2021 M/s Galaxy Cocab India Private Ltd. CIT(A), NFAC, Delhi 23/07/2021 2. Since the issues involved are common in all the above appeals and the appeals were heard together, therefore, these are being disposed off by this common order for the sake of convenience and brevity. 3. As a lead case, for deciding the appeals, we take ITA No. 160/JP/2021 for the A.Y. 2018-19 wherein following grounds have been raised by the assessee. "1. Under the facts and circumstances of the case, the AO has erred in adding Rs. 955353 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43 taxmann.com 411. It was further submitted that the recently Jodhpur Benches of the Tribunal has also taken a similar view in case of Mohangarh Engineers and Construction company vs DCIT, CPC (in ITA No. 405/JODH/2021 dated 12.08.2021) and similar view has been taken by the Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (in ITA No. 359/Bang/2021 dated 12.10.2021). It was further submitted that the explanation added to Section 36(1)(va) of the Act by the Finance Act, 2021 will take effect from 1st April, 2021 and will apply from the assessment year 2021-22 and subsequent assessment years and not to the impugned assessment year. It was further submitted that the adjustment is beyond the scope of Section 143(1) of the Act. The ld. AR has also submitted that identical issue has already been decided by the Coordinate Bench of this Tribunal in assessee's own case for the A.Y. 2018-19 in ITA No. 186/JP/2021 order dated 15/11/2021 and decided in the appeal in favour of the assessee. It was accordingly submitted that the adjustment so made by the CPC and confirmed by the ld. CIT(A) NFAC may be directed to be deleted. 8. Per contra, the ld. DR submitted that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: "13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees's contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees's contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act. 14. The issue is no more res integra in light of series of decisions rendered by the Hon'ble Rajasthan High Court starting from CIT vs. State Bank of Bikaner & Jaipur (supra) and subsequent decisions. 15. In this regard, we may refer to the initial decision of Hon'ble Rajasthan High Court in case of CIT vs. State Bank of Bikaner & Jaipur wherein the Hon'ble High Court after extensively examining the matter and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act." 16. The said decision has subsequently been followed in CIT vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and will accordingly apply to assessment year 2021-22 and subsequent assessment years". In 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. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- "7. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon'ble Karnataka High Court. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also. On this aspect, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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