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TMI Blog2022 (9) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ding rejection application filed u/s 154 of the Income-tax Act, 1961 and confirming the adjustment of Rs.3,50,253/- made by CPC out of deposit of employee contribution to PF/ESI made before due date of filing of return. 2. In the facts and circumstances of the case and in law, the ld. Commissioner of Income-tax (Appeals) has erred in confirming adjustment of Rs.3,50,253/- representing employer's contribution to PF/ESI which is a debatable issue. 3. The impugned order is bad in law and in facts. 4. The appellant craves leave to add, alter or omit all or any grounds of appeal in the interest of justice." 2. At the very outset of the hearing of the appeal, it transpires that both the appeals are time barred by 80 days. The reasons enshrined in the applications reveals that the delay was caused because of circumstances which could neither be attributed to any deliberate conduct nor smack of a lackadaisical approach on the part of the respective assessee-appellants. The Ld. DR did not raise any objection to the seeking of condonation of delay. After hearing the parties, we are satisfied with the reasons leading to the delay and condone the same after drawing support from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, the Ld. AR had pressed into service certain pronouncements/orders of various judicial forums. 9. Per contra, the Ld. Departmental Representative (for short 'DR') relied on the orders of the authorities below. It was vehemently submitted by the Ld. DR that pursuant to insertion of 'Explanation-5' to Section 43B a/w. 'Explanation-1' to Section 36(1)(va) of the Act, the legislature had made it abundantly clear beyond any doubt that the delayed deposit of the employee's share of contribution towards welfare funds by the assessee would not be saved by the extended time period contemplated u/s.43B(b) of the Act. 10. After giving a thoughtful consideration to the issue in hand in the backdrop of the contentions advanced by the ld. Authorized Representatives of both the parties, we find that the issue herein involved is squarely covered by the order passed by the Tribunal in the case of M/s Ind Synergy Limited Vs. The DCIT-1(2), Raipur, ITA No.312/RPR/2016; dated 10/03/2022 (to which one of us, the JM was a party), wherein after exhaustive deliberations it was held as under : "Adverting to the disallowance of the assessee's claim for deduction of the employees share of contribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. CIT Vs. Jaipur Vidyut Vitran Nigam Ltd (2014) 363 ITR 307 (Raj) vii. Essae Teraoka Pvt. Ltd Vs. DCIT (2014)366 ITR 408 (Kar) viii. CIT Vs. Vijay Shree Ltd (2014) 43 Taxmann.com 396 (Cal) ix. CIT Vs. Kichha Sugar Co Ltd (2013) 356 ITR 351 (Uttarakhand) In the backdrop of the aforesaid settled position of law, we are of the considered view that no distinction is to be drawn between the employers as well as employees contribution to PF and ESI, as both are covered u/s 43B of the Act. 11. Before parting qua the aforesaid issue in hand, we think it apt to deal with the scope of applicability of the amendments that have been made available on the statue vide the Finance Act, 2021, i.e, "Explanation 5" to Section 43B and "Explanation 2" to Section 36(1)(va), i.e, as to whether those are applicable prospectively w.e.f A.Y 2021-22 onwards, or, are to be given a retrospective effect. Issue in hand is squarely covered by the order of a coordinate bench of the tribunal, i.e, ITAT, Amritsar in the case of Vinko Auto Industries Ltd. Vs. DCIT 2021 (12) TMI 574. In its aforesaid order, the Tribunal had after drawing support from the order of the ITAT, Hyderabad Bench in the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A) to the effect that the amendment made in Section 36(1)(va) and 43B of the Act by Finance Act 2021 has to be considered as clarificatory in nature and having retrospective effects, therefore would be applicable to the previous assessment years as well. We may observe that various benches of the ITAT including Hyderabad Bench in the case of Value Momentum Software Services Pvt. Ltd. (ITA No.2197/Hyd/2017 decided on 19.05.2021), have taken into consideration the identical issue qua applicability of the amendment to Section 36(1)(va) and Section 43B of the Act, by inserting Explanations by the Finance Act, 2021 and clearly held that the amendment shall be applicable from 1st April, 2021 onwards . It is also relevant to note that the CBDT has also issued Memorandum of Explanation qua applicability of the amended provisions of Section 36(1)(va) & 43B of the Act w.e.f. 1st April, 2021, and Assessment Year 2021-21 onwards, hence there is no doubt qua applicability of the amended provisions referred above, prospectively. On the aforesaid discussion, the second aspect as considered/determined by the ld. CIT(A) qua retrospective application of the amended provisions of Section 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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