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TMI Blog2022 (10) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... o, hold, even justifying a rectification u/s. 154/254(2), even where rendered after the date of the order sought to be rectified. See SAURASHTRA KUTCH STOCK EXCHANGE LTD [ 2008 (9) TMI 11 - SUPREME COURT] and SMT. ARUNA LUTHRA. [ 2001 (8) TMI 84 - PUNJAB AND HARYANA HIGH COURT] No such decision has been found, or otherwise pointed out by the parties, as was the case before the Tribunal in Nikhil Mohine [ 2021 (11) TMI 927 - ITAT JABALPUR] any such decision, even if discovered later, may operate to amend this order, or the order giving appeal effect thereto, to bring it in conformity or agreement with the said decision/s, of course, after allowing a fair opportunity of hearing to the assessee. The impugned additions, therefore, cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be squarely on the point. The ld. Sr. DR., Sh. Gupta would, upon inquiry by the Bench, admit to the impugned sums having been deposited by 30/9/2021, i.e., the due date of filing the return of income for the relevant year. He would further state of being not in the know of any decision by the Hon'ble jurisdictional High Court to the contrary, i.e., opining that the employee s contribution to the employee welfare fund is to be, as required u/s. 2(24)(x) r/w s. 36(1)(va), deposited by the assessee-employer by the due date of its deposit under the relevant Act for the same not to be disallowed in computing his total income under the Act. 3. We have heard the parties, and perused the material on record. 3.1 Our first observation in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee s contribution as being covered by s. 43B(b), implying, in context, u/s. 37(1) r/w s. 43B(b), which were aplenty (para 3 of the impugned order), it opined, could be validated only by disregarding the clear language of the relevant provisions, upheld constitutionally and not read down. The said decisions must nevertheless be respected, so that, there being no decision by the Hon'ble jurisdictional High Court in the matter, no adjustment contrary thereto could be made u/s. 143(1) or u/s. 154. 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 contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, deemed by the legal fiction of s. 2(24)(x) as the assessee-employer s income, as an expense deductible u/s. 37(1), which could be so only where it is not recoverable an impossibility, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguage thereof. The Explanations under reference were therefore clarificatory and, thus, retrospective. 3.3 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 reading of the said documents. Decision 4.1 The view recorded in the impugned order/s on the merits of the additions even as the same agrees with that expressed by the Tribunal in Nikhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 years, 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), and even where rendered after the date of the order sought to be rectified ( Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC); CIT v. Aruna Luthra [2001] 252 ITR 76 (P H)(FB)). No such decision has been found, or otherwise pointed out by the parties, as was the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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