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TMI Blog2022 (10) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 - HIMACHAL PRADESH HIGH COURT] squarely applies to the facts and circumstances of the instant cases thereby not warranting any disallowance since the amounts in question were admittedly deposited before the due date u/s 139(1) of the Act and also pertains to prior assessment years prior to A.Y. 2021-22. We direct the A.O to delete the additions made u/s 36(1)(va) of the Act from the hands of the above mentioned assessees - Decided in favour of assessee. - I.T.A No. 533/PUN/2021 , 541/PUN/2021 - - - Dated:- 26-9-2022 - SHRI INTURI RAMA ROAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY , JUDICIAL MEMBER Appellant No. 1 by : Shri Kiran Sanmane Appellant No. 2 by : Shri Bhuvanesh Kankani Respondents by : Shri Ramn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Employees Provident Fund u/s 36(1)(va) is incorrect, unjustified and is not in accordance with the provisions of the Act. Ld. A.O and ld. CIT(A) erred on the fact that the employees contribution were duly deposited before the due date of filing return of income. Accordingly, the addition so made by ld. A.O and that upheld by ld. ICIT(A) be deleted and appellant be granted just and proper relief in this respect. 2. On the facts and circumstances prevailing in the case and as per provisions and scheme of the I.T. Act, 1961 ( the Act ) it be held that the order passed by the ld. CIT(A)M, National Faceless Appeal Centre by holding that the amendment in secitonm36(1)(va) and 43B of the Act vide Finance Act, 2021 is retrospective is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of return of income u/s 139(1) of the Act. 4. We find the issue is squarely covered by the decision of Pune Tribunal in the case of Prashant Arun Sangai Vs. ADIT, CPC, Bangaluru in ITA No. 466/PUN/2021 for A.Y. 2019-20, order dated 22-06-2022 as well as in the case of SIP Moulds Pvt. Ltd. Vs. ITO Ward 2(1) Nashik in ITA No. 551/PUN/2021 for A.Y. 2019-20, order dated 28-06-2022. There is a consolidated order passed by the Tribunal in ITA No. 538/PUN/2021 and others in the case of Tilokchand Bhabutmal Shah Vs. ADCIT, CPC Bangaluru, etc., order dated 28-06-2022, where the facts before the Tribunal were that the A.O made disallowance on the ground that the assessee had not deposited the employee s share of EPF and ESI etc. within due dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. The ld. CIT-DR has expressed no objection on this submission of the assessee. 9. Considering the submission of the ld. AR and perusing the recent decision of the Tribunal (supra), we find that the identical issue was came up before this Tribunal in the case of Prashant Arun Sangai (supra) wherein the Tribunal decided the similar issue in favour of the assessee relying on the decision of the Hon ble Himachal Pradesh High Court in the case of CIT vs. Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP). The relevant paragraphs of the said decision of the Tribunal (supra) are extracted herein under :- 4. We have heard the ld. DR and gone through the relevant material on record. There is no appearance from the side of the assessee desp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it was deposited before the due date u/s 139 of the Act. The Memorandum explaining the provisions of the Finance Bill, 2021, provides that this amendment will take effect from 1st April, 2021 and will, accordingly apply in relation to assessment year 2021- 2022 and subsequent assessment years. Since the assessment year under consideration is 2019-20, which is anterior to the amendment carried out with effect from A.Y. 2021-22, we hold that the position of law as set out by various Hon ble High Courts including the one in CIT vs. Nipso Polyfabriks Ltd. (supra) squarely applies to the facts and circumstances of the instant case, thereby not warranting any disallowance since the amount in question was admittedly deposited before due date u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Nipso Polyfabrics Ltd. (supra)that there exists no difference between the employees or employers contribution and both are to be allowed as deduction if deposited before the due date. The relevant observations we need to mention at this juncture that the Finance Act, 2021 has inserted Explanation 2 below section 36(1)(va) providing that the provisions of section 43B shall not apply for the purpose of determining the due date under this clause w.e.f. 01-04-2021. The effect of this amendment is that if the amount of employees contribution towards EPF, ESI, etc. is delayed by an employer beyond the due date under the respective Acts, the disallowance will be called for notwithstanding the fact that it was deposited before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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