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TMI Blog2022 (12) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have been made under 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/PB pgs. 76-100), 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 assessee-employer 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contribution as being covered by s. 43B(b), implying, in context, u/s. 37(1) r/w s. 43B(b), which were aplenty (see pg. 29, 26 of the impugned orders), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation to s. 2(1A) by the Finance Act, 1989 were read by the Hon'ble Apex Court to be declaratory amendment having a retrospective 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 employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represented the uniform view across all the Hon ble Courts prior to the deletion of the second proviso to s. 43B by Finance Act, 2003, 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 amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : CIT (Asst.) v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500 (SC) ). The only circumstance, therefore, justifying the impugned 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. 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 said Explanations themselves have been proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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