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TMI Blog2022 (5) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi in sustaining the disallowance made u/s. 36(1)(va) in respect of Contribution made to PF ESI. The notice issued by the registry through speed post with acknowledgement due was returned un-served with the endorsement by the postal authorities that no such firm is present in the given address. As the issue in appeal is decided in a number of appeals by the Tribunal the appeal is disposed off on hearing the Ld. DR on merits. 2. On hearing the Ld. DR and perusing the orders of the authorities below it is noticed that the Central Processing Centre, Bengaluru while passing the intimation u/s. 143(1) disallowed Employees Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned assessment year by stating that the amendments will have retrospective operation as they are clarificatory in nature. However, as I find this issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in case of Mr. Vansh Jain vs. DCIT (supra). While considering identical disallowance made by applying the amended provisions of section 36(1)(va) and section 43B, the coordinate bench has held that the amended provisions would apply prospectively w.e.f. assessment year 2021-2022. The observations of the learned Bench in this regard is reproduced hereunder for better clarity:- 7. 1 have considered the rival arguments made by both the sides, perused the orders of the A.O. and the Ld. CIT(A) and the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income under section 139(1) of the I.T. Act, 1961. 7.1. I find the Hon'ble Delhi High Court in the case of Pro Interaction Service (India) Pvt. Ltd., (supra), following the decision in the case of CIT vs. AIMIL Ltd., (supra), has held that legislative intent was/is to ensure that the amount paid is allowed as expenditure only when payment is actually made. It was further held that it was not the legislative intent and objective to treat belated payment of Employees' Provident Fund Employees' State Insurance Scheme as deemed income of the employer under section 2(24)(x) of the I.T. Act, 1961. 7.2. I find the Coordinate Bench of the Tribunal in the case of Insta Exhibitions Pvt. Ltd., New Delhi vs. Addl. CIT, Special R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prescribed under the said statute i.e. Provident Fund and ESIC. This issue is dealt by the Hon'ble Delhi High Court in case of CIT vs. M/s. Bharat Hotels Ltd. 410 ITR 417 wherein the issue is decided in favour of the revenue, without considering the decision of the Hon'ble Delhi High Court in case of CIT vs. AIMIL Ltd. (20io) 321 ITR 508 (Del.). But the Ld. AR relied upon the decision of the Hon'ble Delhi High Court in case of Pr. CIT vs. Pro Interactive Service (India) Pvt. Ltd. ITA No. 983/2018 pronounced on 10.09.2018 wherein the Hon'ble High Court decided the issue in favour of the assessee relying upon the judgment of AIMIL Ltd. (supra). The Hon'ble Delhi High Court held that the legislative intent was/is to ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. Explanation to the said clause provides that for the purposes of this clause, due date means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued there under or under any standing order, award, contract of service or otherwise. It is proposed to insert Explanation 2 to clause (va) of sub-section (1) of the said section so as to clarify that the provisions of section 43B shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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