9911796707
TMI Blog2022 (6) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961 (hereinafter referred to as 'the Act') by DCIT, CPC, Bengaluru. 2. The sole issue involved in these appeals of assessee is against the action of ld. CIT(Appeals) in confirming the addition of Rs.31,54,759/- & Rs.35,93,103/- and Rs. 42,62,114/- respectively in each of the years under consideration which was disallowed by the Assessing Officer with the aid of section 36(1)(va) on the ground that the assessee failed to make the payment of employees' contribution to ESI & PF account within the due date provided under the PF & ESI Act. He pleaded that the issue in dispute is squarely covered by plethora of judicial precedents placed on record in the paper book. The index of the case laws relied upon is reproduced as under: Sl. No. Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coordinate bench took note of the earlier order of ITAT, Kolkata dated 09.03.2022 whereby the Tribunal considered the impact of amendment brought into section 36(1) as well as 43B by Finance Act, 2021. The discussion made in that order read as under: "3. On due consideration of the above facts and circumstances, we find that ITAT, Kolkata has duly examined the amendment brought in by virtue of Finance Act, 2021. On the proposition and the discussion made by the ITAT in the case of Lumino Industries Limited & Others read as under:- "17. Have heard both the parties. We note that the Finance Bill, 2021 has brought in an amendment which disallows the employees' contribution made in PF and ESI if not made within the due date as prescribed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 36(1 )(va) as under: "Section 36(1 )(va) 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 purpose of determining the 'due date' under this clause' 18. We find that this amendment has been brought in the Act to provide certainty about the applicability of Section 43B in respect of belated payment of employees' contribution. In order to test whether the amendment brought in later is retrospective or not one has to apply the test as laid by the Hon'ble Supreme Court in the case of M/s Snowtex Investment Ltd. (supra) wherein the Hon'ble Supreme court took note of the law laid down on this issue by the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is binding on us. As discussed the decision of the Hon'ble Delhi High Court in Bharat Hotels Ltd. (supra) which was in favor of revenue has not considered the decision of the Co-ordinate Division Bench decision in M/s Aimil Ltd.(supra) which is in favour of assessee. So we note that later decision of the Delhi/Hyderabad Tribunal have followed the decision favouring assessee in the light of the Hon'ble Supreme Court decision in M/s Vegetable Products (supra). In the light of the aforesaid decision and relying on the ratio of the Hon'ble Supreme Court in the case of Vatika Township Pvt. Ltd. (supra) and M/s Snowtex Investment Ltd. (supra) and also taking note of the binding decision of the Hon'ble Jurisdictional Calcutta High Court on this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
