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TMI Blog2022 (10) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ustment relating to section 43B or 36(1)(va) in 143(1)(a) assessment, even otherwise without giving proper notice to the assessee with regard to enhancement - We are in agreement with the submissions of the assessee that the Assessing Officer does not have any mandate u/s. 143(1)(a)(i) to (vi) of the Act. The adjustment made by the Assessing Officer are outside the mandate of section 143(1) of the Act. Therefore, even in this count, the assessment made by the Assessing Officer is bad in law. In the result, Ground No.2 also allowed. - ITA. NO. 1901 / MUM / 2022 - - - Dated:- 30-9-2022 - SHRI AMIT SHUKLA , HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , HON'BLE ACCOUNTANT MEMBER Assessee by : None Department by : Shri Manoj Sinha ORDER PER S. RIFAUR RAHMAN ( AM ) 1. This appeal is filed by the assessee against order of Learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter for short Ld. CIT(A)] dated 02.06.2022 for the A.Y.2018-19. 2. Assessee has raised following grounds in its appeal: - 1. The National Faceless Appeal Centre, hereinafter referred to as NFAC, has erred in confirming the disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct which cannot be disputed. The Ld.DR submitted that the amendment is retrospective applicable. The fact remains that the provisions/explanation was introduced in the Finance Act, 2021 which is effective from 01.04.2021. 6. Considering the rival submissions and overall facts, circumstances, the judicial precedents filed on the similar issue, the Bangalore Bench in the case of M/s. BI Worldwide India Pvt Ltd. v. DCIT in ITA No. 433/Bang/2021 dated 04.01.2022, A.Y.2018-19 has considered the facts and provisions of law has observed at Page No. 3, Para No. 9 10 of the order which is read as under and allowed the appeal: 9. We have heard rival submissions and perused the material on record. An identical issue was considered by the Tribunal in the case of The Continental Restaurant Caf Co. v. ITO (supra). The relevant finding of the Tribunal reads as follows:- 7. I have heard rival submissions and perused the material on record. Admittedly, the assessee has not remitted the employees' contribution of PF of Rs.1,06,190/- and ESI of Rs.16,055/- totaling to Rs.1,22,245/- before the due date specified under the respective Act. However, the assessee had paid the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult to endorse the view taken by the Gujarat High Court. WE agree with the view taken by this Court in W.A.No.4077/2013. 23. In the result, the appeal is allowed and the substantial question of law framed by us is answered in favour of the appellant-assessee and against the respondent-revenue. There shall be no order as to costs. 7.2 The further question is whether the amendment to section 36(1)(va) and 43B of the I.T.Act by Finance Act, 2021 is clarificatory and declaratory in nature. The Hon'ble Supreme Court in the recent judgment in the case of M.M.Aqua Technologies Limited v. CIT reported in (2021) 436 ITR 582 (SC) had held that retrospective provision in a taxing Act which is for the removal of doubts cannot be presumed to be retrospective, if it alters or changes the law as it earlier stood (page 597). In this case, in view of the judgment of the Hon'ble jurisdictional High Court in the case of Essae Teraoka (P.) Ltd. v. DCIT (supra) the assessee would have been entitled to deduction of employees' contribution of PF and ESI if the payment was made prior to due date of filing of the return of income u/s 139(1) of the I.T.Act. Therefore, the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ESI were remitted to the concerned accounts before the due date of filing the return of income u/sn139(1). This, the Tribunal has consistently taken a view that if the PF and ESI are remitted to the respective accounts, the same are required to be allowed as deduction. In the case of KLR Industries Ltd., Vs. DCIT (2017) [83 taxmann.com 322] (Hyd), the Tribunal held as under: 34. The A.O. disallowed the expenditure claimed by observing that the assessee has not remitted the employees contribution to PF and ESI within the prescribed date as mentioned in section 36(1)(va). Though, the assessee did not challenge the disallowance before learned CIT(A) but he raised an additional ground before us challenging the said disallowance. It is the contention of the assessee that the employees contribution to ESI and PF though, was not paid within the due date as prescribed under section 36(1)(va) but such dues having been paid before the due date of filing of return of the income as prescribed under section 139(1), the amount is allowable as a deduction as per the provisions of section 43B. We find merit in the aforesaid submissions of the assessee. There are a number of judicial pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we set aside the order of Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee on this ground is allowed . Respectfully following the same, I set aside the order of the CIT (A) and delete the addition made by the Assessing Officer on this issue . 2. Respectfully following the same, I hold that since the assessee has deposited the Employees Contribution to the PF and ESI before the date of filing the return of income, as per the ITA No. 293 of 2021 Satish Kumar Sinha Hyderabad amended provision applicable to the to the relevant A.Y, the same is not to be disallowed. Assessee s appeal is accordingly allowed. 3. In the result, assessee s appeal is allowed. 8. Respectfully following the above ratio of judicial decisions and the facts emanated in the course of hearing we find that the amendment was brought in Finance Act, 2021 w.e.f 01.04.2021. The law was not framed/amended in the relevant Assessment year and any legal proposition which cast additional burden/liability on the assessee cannot be implemented retrospectively. We considering the overall facts, circumstances, judicial decisions, are of the reasoned view that the amendment to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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