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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 ..... 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, could not have been made under the given facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(1), a proposition that is well-settled, and even as clarified by the Tribunal in Nikhil Mohine v. Dy. CIT (in ITA Nos. 37 38/Jab/2021, dated 18.11.2021), a decision which is squarely on the point, and on which the assessee places total reliance. He, on being inquired by the Bench, stated of there being no decision by the Hon'ble jurisdictional High Court to the contrary, i.e., opining that the employee s contribution to the employee welfare funds is to be, as required u/s. 2(24)(x) r/w s. 36(1)(va), deposited by the assesseeemployer by the due date of deposit under the relevant Act for the same not to be added to his total income under the Act. The ld. Sr. DR, Sh. Kumar, even as he relied on the impugned order, could not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were aplenty, 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, 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. Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect, and even as the said amendment was effected during the pendency 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 01/4/2004, which the Explanations to ss. 36(1)(va) and 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned additions is a decision/s by the Hon ble jurisdictional High Court (also see para 4.2). No such decision, however, despite asking, stands brought to our notice by the parties, or otherwise found. This would also render the decision in Vedvan Consultants (P.) Ltd. (in ITA No. 1312/Del/2020, dated 26/8/2021), relied upon by the ld. CIT(A), which is on merits and, further, following the decision by the jurisdictional High Court in CIT v. Bharat Hotels Ltd. [2019] 410 ITR 417 (Del), distinguishable. As regards the aspect of the retrospective nature of the Explanations under reference, we again find no difference in the view expressed therein with that by the Tribunal in Nikhil Mohine (supra), i.e., per se. So, however, as afore-noted, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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