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TMI Blog2022 (12) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. He would, toward the same, take us to the audit report u/s. 44AB of the Act for both the relevant year (at PB pgs. 1-40/45). The addition, being debatable, could 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/s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt u/s. 143(1)(a) (or an amendment u/s. 154), 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 context, u/s. 37(1) r/w s. 43B(b), which were aplenty (para 4.1 of the impugned order), 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, so that, there being no decision by the Hon'ble jurisdictional High Court in the matter, no adjustment contrary thereto could be made u/s. 143(1) or u/s. 154. The only manner, therefore, available for the Revenue to effect an adjustment u/s. 143(1)/154 is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further still, noticing the settled legal position qua the test for determining retrospectivity, i.e., if a 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 the assessee s argument is in regarding the employee s contribution, deemed by the legal fiction of s. 2(24)(x) as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify 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 only from AY 2021-22, and which view is unmistakable on a plain reading of the said documents. Decision 4.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aspect of the retrospective nature of the Explanations under reference, we again find no difference in the view expressed in the impugned order/s, with that by the Tribunal in Nikhil Mohine (supra), i.e., per se. So, however, as afore-noted, the said Explanations themselves stand proposed as prospective amendments, as stated in the Notes on the Clauses to, and the Memorandum explaining the Provisions of, the Finance Bill, 2021, with a view to, as explained, settle the controversy arising due to the contrary view expressed by some High Courts, for which reference may be made to para 5.4 of the Tribunal s order (also refer paras 3.1 3.2 above). There is, accordingly, no question of the same being given a retrospective effect. 4.2 There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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