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TMI Blog2022 (9) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961 ('the Act' hereinafter) for the Assessment Year (AY) 2018-19 vide Intimation dated 15/11/2019. The Arguments 2. None appeared for and on behalf the assessee-appellant, who has moved an adjournment application through it's counsel, Sh. Eshan Tripathi, stating of Sh. Purohit, the senior counsel, who is to argue the matter, being out-of-station. The matter, however, being squarely covered by a series of decisions by this Tribunal, indeed by the Jabalpur Bench itself, in favour of the assessee, the same was taken as heard; Sh. Kumar, the ld. Sr. DR, on this being conveyed by the Bench, conceding to this being the position, offering no arguments, nor any decision by the Hon'ble jurisdictional High Court to the contrary, which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly by disregarding the clear language of the relevant provisions, upheld constitutionally and not read down. The said decisions must nevertheless be respected, and no adjustment contrary thereto could be made u/s. 143(1); there being no decision by the Hon'ble jurisdictional High Court in the matter. The only manner, therefore, available for the Revenue to effect an adjustment u/s. 143(1)/154, is where the Explanations to section 36(1)(va) and s. 43B(b) inserted by Finance Act, 2021, which attempt to resolve the issue of the employee's contribution to the employee welfare funds being governed by section 43B(b), i.e., to the exclusion of s. 36(1)(va), are held as retrospective. Legislative intent being the cornerstone and the sole deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of the appeal against the assessment. Further still, noticing the settled legal position qua the test for determining retrospectivity, i.e., if the provision could be construed, without the aid of the subsequent amendment thereto, to take within its ambit the said amendment, the issue was also examined by the Tribunal on merits, i.e., for the said limited purpose, to find that the view canvassed by or on the assessee's behalf could be sustained only by ignoring the existence of s. 36(1)(va) - which governs the deductibility of the employees' contribution to the employee welfare funds, on the statute-book - clearly, an impermissibility. Another fundamental infirmity in the assessee's argument is in regarding the employee's contribution, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43B by Finance Act, 2021 seek to statutorily clarify in view of the conflict of judicial opinion, passing thus the test of retrospectivity, even as unequivocally expressed per the unambiguous language thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. 3.2 The said Explanations, the Tribunal continued, had however been, as clear from a reference to the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, reproducing the same, proposed as prospective amendments. The amendments by way of Explanation 5 to s. 43B and Explanation 2 to s. 36(1)(va), it concluded, are to therefore take effect only from AY 2021-22, and which view is unmistakable on a plain re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oversy arising due to the contrary view expressed by some High Courts, for which reference may be made to para 5.4 of the Tribunal's order (also refer paras 3.1 & 3.2 above). There is, accordingly, no question of the same being given a retrospective effect. 4.2 There is, in view of the foregoing, no question of the said Explanations being read as retrospective, so as to apply for the relevant year, sustaining the impugned additions, which therefore fail. This is, however, subject to any decision/s by the Hon'ble jurisdictional High Court, which would, where so, hold, even justifying a rectification u/s. 154/254(2), even where rendered after the date of the order sought to be rectified (Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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