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TMI Blog2022 (6) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... F/ESI on or before the due date for filing return of income for AY 2017-18 u/s.139(1) - 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 find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bri Enterprises (2008) 298 ITR 141 (Kar), Consultants India P Ltd Vs CIT Bangalore III (2013) 597/34 Taxman.com 20 (Kar). 4. With regard to employee s share of contribution to PF and ESI, the CIT(A) referred to the amendment made to section 36(1)(va) and 43B of the Act by the Finance Act, 2021. The Finance Act, 2021 has amended section 36, sub-section (1), in clause (va), by inserting Explanation-2 which reads thus: Explanation 2.-For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the due date under this clause;'. The finance Act, 2021 also amended section 43B by inserting Explantion-5 thereto whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return. By virtue of insertion of Explanation 5 to this section, the provisions of the said section shall not apply and shall be deemed never to have been applied to asum received by the assessee from any of his employees to which the provisions of subclause (x) of clause (24) of section 2 applies. 5. The CIT(A) was of the view that Section 36(1)(va) and section 43B(b) operate on totally different footings and have different parameters for due dates, i.e., employee's contribution is linked to payment before the due dates speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y intendment of deeming nature expressly stated therein. The CIT(A) upheld the addition made by the AO. 7. We find that identical issue has been considered in the following decisions: M/s Mahadev Cold Storage vs Jurisdictional AO - ITA.No.41 42/Agra/2021 M/s Essae Teraoka (P.) Ltd vs DCIT - [2014] 43 taxmann.com 33 (Karnataka) Anand Kumar Jain vs ITO - ITA NO 4192/MUM/2012 ValueMomentum Software Services Private Limited vs. DCIT I.T.A. No. 2197/HYD/2017 [Assessment Year: 2013-14] dated19.05.2021 Mohan Ram Chaudhary vs. ITO ITA No. 51 54-55/Jodh/2021 [Assessment Year: 2018-19} dated 28.09.2021 8. The Hon ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that empl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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