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TMI Blog2022 (10) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... ('the Act' hereinafter) for the Assessment Year (AY) 2018-19 vide Intimation dated 08/01/2020. The Arguments 2. At the very outset, it was submitted by the ld. counsel for the assessee, Sh. Tiwari, that the only issue arising in the instant appeal is the addition of the employee's contribution to the employee welfare funds for the reason of the same having been deposited beyond the due date specified in its respect u/s. 36(1)(va), even as the same stand deposited by the due date of filing the return of income u/s. 139(1) of the Act for the relevant year, being 31/10/2018, for which he would take us through the relevant schedule of the Auditor's Report, forming part of the annual accounts for fy 2017-18(copy on record). The addition, being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. Reliance stands placed by it on the decisions in Popular Vehicles & Services (P.) Ltd. [2018] 96 taxman.com 13 (Ker); CIT v. Gujarat State Road Transport Corporation [2014] 366 ITR 170 (Guj), CIT v. Merchem Ltd. [2015] 378 ITR 443 (Kerala); and Unifac Management Services (India) P. Ltd. v. Asst. CIT [2018] 409 ITR 225 (Mad). The matter stands examined at length by the Tribunal in Nikhil Mohine (supra), wherein, noticing, inter alia, the cited decisions, it held that in view of the cleavage of judicial opinion in the matter and the limited scope of an adjustment u/s. 143(1)(a), the same could not be decided on merits. The decisions by the Hon'ble High Courts holding the employee's contribution as being covered by s. 43B(b), implying, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive clause/s to the relevant provisions. Rather, the tenor of the language employed, clearly giving the stated position a retrospective effect, necessarily requires the Explanations to be read as inserted in the statute from a later date. That is, the fact of insertion of the said Explanations w.e.f. a later date is consistent with the language giving it a retrospective effect and, thus, does not impinge adversely on it being regarded as so. Reference here may be made to the decision in Union of India vs. S. Muthyam Reddy [1999] 240 ITR 341 (SC), wherein the words 'shall not include and shall be deemed never to have included' in the Explanation to s. 2(1A) by the Finance Act, 1989 were read by the Hon'ble Apex Court to be a declarator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he employee's contribution to the employee welfare funds is exclusively covered u/s. 43B, itself, with respect, misplaced, if not irrelevant. The view being canvassed was, thus, it opined, viewed from any angle, wholly untenable. The view expressed by the Tribunal is in fact in agreement with that projected by the Board per its Circular (No. 22/2015, dated 17/12/2015), as also that canvassed per the impugned order with reference to the cited decisions, both explaining, as did the Explanatory Notes on the insertion of s. 36(1)(va) on the statute, the object of the said provision. It is this view, which in fact, as also noticed by the Tribunal, represented the uniform view across all the Hon'ble Courts prior to the deletion of the second prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, our decision in the instant case, as would be apparent from the foregoing, is based on the conflict of judicial opinion in the matter, duly noted in the Explanatory Notes to the Provisions of the Finance Bill, 2021, explaining that to be the reason for effecting the amendments per the said Explanations. The auditor does not express any judicial opinion per his audit report and, clearly, reference thereto in s. 143(1)(a)(iv) is for the facts stated therein. Why, the processing of a return of income u/s. 143(1)(a) is not an 'assessment' inasmuch as there is no provision for hearing the assessee, precluding debatable issues (see: CIT (Asst.) v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500 (SC)). The only circumstance, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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. [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 case before the Tribunal in Nikhil Mohine (supra). 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. 4.3 The impugned additi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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