PEE TEE TURNERS , JAIPUR V. NFAC , DELHI

ITA 105/JPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2479 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2019-2020
• Appeal Filed On: 31-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K GUPTA PR
• Assessee Lawyers: S L PODDAR
• Keywords: Retrospective amendment
• Section: 43B; 143(1); 139(1); 43; 154; 139

Judgement Text

S VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 105/JP/2021 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2019-20 M/S PEE TEE TURNERS C-2, SIKAR HOUSE, OUTSIDE CHANDPOLE GATE, JAIPUR. CUKE VS. ASSISTANT DIRECTOR OF CPC, CENTRALIZED PROCESSING CENTRE, BENGALURU. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCP 4423 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (PR.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 28/10/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 28/10/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A), DELHI (NFAC) DATED 23.08.2021 FOR THE ASSES SMENT YEAR 2019- 20 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GRO UNDS OF APPEAL:- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 6,28,972/- AS PERTHE PROVISION OF SECTION 2(24)(X) READ WITH SECT ION 36(1)(VA) ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 2 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF DELAY IN PAYMENT OF ESI AND PF MADE BY CPC U/S 154 OF THE INCOME TAX AC T, 1961. 2. UNDER THE FACTS AND CIRCUMSTANCES OF CASE CPC A S NO POWER TO MAKE ADJUSTMENT U/S 143(1) OF THE INCOME TAX ACT FO R DISALLOWANCE OF ESI/PF LATE DEPOSIT U/S 36(1)(VA)/4 3B WHICH ARE OTHERWISE COVERED BY THE SUPREME COURT DECISION. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE FILED ITS RETURN OF INCOME ON 24.10.2019 DECLARING TOTAL INCOME OF R S. 57,28,400/- WHICH WAS PROCESSED U/S 143(1) AND IN TERMS OF INTI MATION DATED 17.08.2020 ISSUED BY CPC, IT MADE DISALLOWANCE OF R S. 6,28,972/- TOWARDS EMPLOYEES CONTRIBUTION TOWARDS ESI AND PF. ON APPEAL, THE LD. CIT(A), NFAC HAS CONFIRMED THE DISALLOWANCE MAD E U/S 143(1) ON ACCOUNT OF ASSESSEES FAILURE TO PAY THE EMPLOYEES CONTRIBUTION OF PF/ESI WITHIN THE PRESCRIBED DUE DATES AS PER SECTI ON 36(1)(VA) OF THE ACT. AGAINST THE SAID ORDER, THE ASSESSEE IS IN AP PEAL BEFORE US. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE-COMPANY DEPOSITED EMPLOYEES CONTRIBUTION OF PF/ESI THOUGH WITH A DELAY OF FEW DAYS FROM THE DUE DATES MENTION ED IN THE RESPECTIVE ACTS, HOWEVER THE SAME WAS DEPOSITED WEL L BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. IT WAS SUBMITTE D THAT THE SAID FACT IS NOT UNDER DISPUTE AND WHERE SUCH CONTRIBUTION HAS B EEN DEPOSITED BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCO ME, NO DISALLOWANCE U/S 36(1)(VA) OF THE ACT CAN BE MADE AND IN SUPPORT , RELIANCE WAS PLACED ON THE HONBLE RAJASTHAN HIGH COURT DECISION IN CASE OF CIT VS. RAJASTHAN STATE BEVERAGES CORPORATION LTD. (2017) 3 92 ITR 2 AND CIT ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 3 VS. STATE BANK OF BIKANER AND JAIPUR (2014) 43 TAXM ANN.COM 411. IT WAS FURTHER SUBMITTED THAT THE RECENTLY JODHPUR BEN CHES OF THE TRIBUNAL HAS ALSO TAKEN A SIMILAR VIEW IN CASE OF MOHANGARH ENGINEERS AND CONSTRUCTION COMPANY VS DCIT, CPC (IN ITA NO. 405/JODH/2021 DATED 12.08.2021) AND SIMILAR VIEW HAS BEEN TAKEN BY THE BANGALORE BE NCHES IN CASE OF SHRI GOPALKRISHNA ASWINI KUMAR VS. ACIT (IN ITA NO. 359/BANG/2021 DATED 12.10.2021 ). IT WAS FURTHER SUBMITTED THAT THE EXPLANATION ADDED TO SECTION 36(1)(VA) OF THE ACT B Y THE FINANCE ACT, 2021 WILL TAKE EFFECT FROM 1 ST APRIL, 2021 AND WILL APPLY FROM THE ASSESSMENT YEAR 2021-22 AND SUBSEQUENT ASSESSMENT Y EARS AND NOT TO THE IMPUGNED ASSESSMENT YEAR. IT WAS FURTHER SUBMIT TED THAT THE ADJUSTMENT IS BEYOND THE SCOPE OF SECTION 143(1) OF THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT THE ADJUSTMENT SO MADE B Y THE CPC AND CONFIRMED BY THE LD. CIT(A) NFAC MAY BE DIRECTED TO BE DELETED. 4. PER CONTRA, THE LD. DR SUBMITTED THAT AS PER DE TAILS FURNISHED IN THE TAX AUDIT REPORT, THE PAYMENT OF EMPLOYEES CON TRIBUTION OF PF/ESI AMOUNTING TO RS. 6,28,972/- WAS NOT MADE WITHIN TH E PRESCRIBED DUE DATE U/S 36(1)(VA) OF THE ACT AND SINCE THESE AMOUN T WERE NOT DISALLOWED IN THE RETURN OF INCOME FILED BY THE ASS ESSEE, THE VARIANCE BETWEEN THE TAX AUDIT REPORT AND ITR HAS BEEN DULY FLAGGED BY THE CPC IN THE COMPUTERIZED PROCESSING AND DISALLOWANCE U/ S 143(1)(A)(IV) ON THE BASIS OF FACT FURNISHED BY THE ASSESSEE WAS MAD E WHICH CLEARLY FAILS WITHIN AMBIT OF PRIMA FACIE ADJUSTMENT TO BE CARRI ED OUT U/S 143(1)(A)(IV) OF THE ACT. FURTHER, RELIANCE WAS PLA CED ON THE AMENDMENT BROUGHT IN BY THE FINANCE ACT, 2021 WHERE IN THE EXPLANATION TO SECTION 36(1)(VA) HAS BEEN INTRODUCE D. IT WAS SUBMITTED ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 4 FROM THE SAID AMENDMENT, IT IS EVIDENT THAT THE LAW IS AND HAS ALWAYS VERY CLEAR I.E. EMPLOYEES CONTRIBUTION TO SPECIFIE D FUND WILL NOT BE ALLOWED AS DEDUCTION U/S 36(1)(VA) IF THERE IS DEL AY IN DEPOSIT EVEN BY A SINGLE DAY AS PER THE DUE DATES MENTIONED IN THE RESPECTIVE LEGISLATION. IT IS ALSO CLEAR THAT THE AMENDMENTS A RE ONLY DECLARATORY/CLARIFICATORY IN NATURE AND ARE THEREFO RE, APPLICABLE WITH RETROSPECTIVE EFFECT BY NECESSARY INTENDMENT OF DEE MING NATURE EXPRESSLY STATED THEREIN. THE LD. DR ACCORDINGLY SU BMITTED THAT IN VIEW OF THE UNAMBIGUOUS WORDING OF THE NOW AMENDED PROVI SIONS OF SECTION 36(1) AND 43B, IT IS CLEAR THAT THE EMPLOYEES CONT RIBUTION CAN BE ALLOWED AS A DEDUCTION ONLY IF IT HAD BEEN PAID WIT HIN THE PRESCRIBED DUE DATES UNDER THE RELEVANT WELFARE FUNDS AND THIS POSITION OF LAW IS AND HAS ALWAYS BEEN THE CASE AND THE CLARIFICATION BROUGHT ABOUT BY THE AMENDMENT CLEARLY APPLY RETROSPECTIVELY. IT WAS THE REFORE RIGHTLY HELD BY THE LD CIT(A) THAT THE DISALLOWANCE MADE U/S 143 (1) OF THE ACT BY CPC ON ACCOUNT OF ASSESSEES FAILURE TO PAY THE EMP LOYEES CONTRIBUTION OF PF/ESI WITHIN THE PRESCRIBED DUE DATES AS PER SE CTION 36(1)(VA) IS STRICTLY IN ACCORDANCE WITH LAW AND CLEARLY COMES U NDER THE PRIMA FACIE ADJUSTMENTS AS ENVISAGED U/S 143(1)(A)(IV) OF THE ACT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. IN CASE OF MOHANGARH ENGINEERS AND CONSTRUCTION COMPANY VS DCIT, CPC (SUPRA), SPEAKING THROUGH ONE OF US, WE HAVE EXTENSIVELY DEALT WITH THE IDENT ICAL MATTER RELATING TO EMPLOYEES CONTRIBUTION TOWARDS ESI/PF AND OUR F INDINGS THEREIN READ AS UNDER: ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 5 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE DET AILS SUBMITTED BY THE ASSESSEE AS PART OF ITS RETURN OF INCOME, IT IS NOTED THAT THE ASSESSEE HAS DEPOSITED THE EMPLOYEESS CONTRIBU TION TOWARDS ESI AND PF WELL BEFORE THE DUE DATE OF FILING OF RE TURN OF INCOME U/S 139(1) AND THE LAST OF SUCH DEPOSITS WERE MADE ON 16.04.2019 WHEREAS DUE DATE OF FILING THE RETURN FO R THE IMPUGNED ASSESSMENT YEAR 2019-20 WAS 31.10.2019 AND THE RETURN OF INCOME WAS ALSO FILED ON THE SAID DATE. ADMITTEDLY AND UNDISPUTEDLY, THE EMPLOYEESS CONTRIBUTION TO ESI AND PF WHICH HAVE BEEN COLLECTED BY THE ASSESSEE FROM ITS EMPLOY EES HAVE THUS BEEN DEPOSITED WELL BEFORE THE DUE DATE OF FIL ING OF RETURN OF INCOME U/S 139(1) OF THE ACT. 14. THE ISSUE IS NO MORE RES INTEGRA IN LIGHT OF SE RIES OF DECISIONS RENDERED BY THE HONBLE RAJASTHAN HIGH CO URT STARTING FROM CIT VS. STATE BANK OF BIKANER & JAIPUR (SUPRA) AND SUBSEQUENT DECISIONS. 15. IN THIS REGARD, WE MAY REFER TO THE INITIAL DEC ISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. STA TE BANK OF BIKANER & JAIPUR WHEREIN THE HONBLE HIGH COURT AFT ER EXTENSIVELY EXAMINING THE MATTER AND CONSIDERING THE VARIOUS DE CISIONS OF THE HONBLE SUPREME COURT AND VARIOUS OTHER HIGH COURTS HAS DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE. IN T HE SAID DECISION, THE HONBLE HIGH COURT WAS PLEASED TO HEL D AS UNDER: 20. ON PERUSAL OF SEC.36(1)(VA) AND SEC.43(B)(B) A ND ANALYZING THE JUDGMENTS RENDERED, IN OUR VIEW AS WE LL, IT IS ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 6 CLEAR THAT THE LEGISLATURE BROUGHT IN THE STATUTE S ECTION 43(B)(B) TO CURB THE ACTIVITIES OF SUCH TAX PAYERS WHO DID NOT DISCHARGE THEIR STATUTORY LIABILITY OF PAYMENT OF DUES, AS AFORESAID; AND RIGHTLY SO AS ON THE ONE HAND CLAIM WAS BEING MADE UNDER SECTION 36 FOR ALLOWING THE DEDUCT ION OF GPF, CPF, ESI ETC. AS PER THE SYSTEM FOLLOWED BY TH E ASSESSEES IN CLAIMING THE DEDUCTION I.E. ACCRUAL BA SIS AND THE SAME WAS BEING ALLOWED, AS THE LIABILITY DID EX IST BUT THE SAID AMOUNT THOUGH CLAIMED AS A DEDUCTION WAS N OT BEING DEPOSITED EVEN AFTER LAPSE OF SEVERAL YEARS. THEREFORE, TO PUT A CHECK ON THE SAID CLAIMS/DEDUCT IONS HAVING BEEN MADE, THE SAID PROVISION WAS BROUGHT IN TO CURB THE SAID ACTIVITIES AND WHICH WAS APPROVED BY THE HON'BLE APEX COURT IN THE CASE OF ALLIED MOTORS (P) LTD. (SUPRA). 21. A CONJOINT READING OF THE PROVISO TO SECTION 43 -B WHICH WAS INSERTED BY THE FINANCE ACT, 1987 MADE EFFECTIV E FROM 01/04/1988, THE WORDS NUMBERED AS CLAUSE (A), (C), (D), (E) AND (F), ARE OMITTED FROM THE ABOVE PROVISO AND , FURTHER MORE SECOND PROVISO WAS REMOVED BY FINANCE ACT, 2003 THEREFORE, THE DEDUCTION TOWARDS THE EMPLOYER' S CONTRIBUTION, IF PAID, PRIOR TO DUE DATE OF FILING OF RETURN CAN BE CLAIMED BY THE ASSESSEE. IN OUR VIEW, THE EXPLAN ATION APPENDED TO SECTION 36(1)(VA) OF THE ACT FURTHER EN VISAGE THAT THE AMOUNT ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE ADMISSIBLE AT THE TIME OF SUBMITTING R ETURN OF THE INCOME UNDER SECTION 139 OF THE ACT IN RESPECT OF THE ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 7 PREVIOUS YEAR CAN BE CLAIMED BY THE ASSESSEE FOR DE DUCTION OUT OF THEIR GROSS TOTAL INCOME. IT IS ALSO CLEAR T HAT SEC.43B STARTS WITH A NOTWITHSTANDING CLAUSE & WOULD THUS O VERRIDE SEC.36(1) (VA) AND IF READ IN ISOLATION SEC. 43B WO ULD BECOME OBSOLETE. ACCORDINGLY, CONTENTION OF COUNSEL FOR THE REVENUE IS NOT TENABLE FOR THE REASON AFORESAID THAT DEDUCTIONS OUT OF THE GROSS INCOME FOR PAYMENT OF T AX AT THE TIME OF SUBMISSION OF RETURN UNDER SECTION 139 IS PERMISSIBLE ONLY IF THE STATUTORY LIABILITY OF PAYM ENT OF PF OR OTHER CONTRIBUTION REFERRED TO IN CLAUSE (B) ARE PA ID WITHIN THE DUE DATE UNDER THE RESPECTIVE ENACTMENTS BY THE ASSESSEES AND NOT UNDER THE DUE DATE OF FILING OF R ETURN. 22. WE HAVE ALREADY OBSERVED THAT TILL THIS PROVISI ON WAS BROUGHT IN AS THE DUE AMOUNTS ON ONE PRETEXT OR THE OTHER WERE NOT BEING DEPOSITED BY THE ASSESSEES THOUGH SUBSTANTIAL BENEFITS HAD BEEN OBTAINED BY THEM IN T HE SHAPE OF THE AMOUNT HAVING BEEN CLAIMED AS A DEDUCT ION BUT THE SAID AMOUNTS WERE NOT DEPOSITED. IT IS PERT INENT TO NOTE THAT THE RESPECTIVE ACT SUCH AS PF ETC. ALSO P ROVIDES THAT THE AMOUNTS CAN BE PAID LATER ON SUBJECT TO PA YMENT OF INTEREST AND OTHER CONSEQUENCES AND TO GET BENEF IT UNDER THE INCOME TAX ACT, AN ASSESSEE OUGHT TO HAVE ACTUALLY DEPOSITED THE ENTIRE AMOUNT AS ALSO TO ADD UCE EVIDENCE REGARDING SUCH DEPOSIT ON OR BEFORE THE RE TURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 OF THE IT ACT. ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 8 23. THUS, WE ARE OF THE VIEW THAT WHERE THE PF AND/ OR EPF, CPF, GPF ETC., IF PAID AFTER THE DUE DATE UNDER RES PECTIVE ACT BUT BEFORE FILING OF THE RETURN OF INCOME UNDER SECTION 139(1), CANNOT BE DISALLOWED UNDER SECTION 43B OR U NDER SECTION 36(1)(VA) OF THE IT ACT. 16. THE SAID DECISION HAS SUBSEQUENTLY BEEN FOLLOWE D IN CIT VS. JAIPUR VIDYUT VITRAN NIGAM LTD. (SUPRA), CIT VS . UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD. (SUPRA), AND CIT VS RAJASTHAN STATE BEVERAGES CORPORTATION LIMITED (SUP RA). IN ALL THESE DECISIONS, IT HAS BEEN CONSISTENTLY HELD THAT WHERE THE PF AND ESI DUES ARE PAID AFTER THE DUE DATE UNDER THE RESPECTIVE STATUES BUT BEFORE FILING OF THE RETURN OF INCOME U NDER SECTION 139(1), THE SAME CANNOT BE DISALLOWED UNDER SECTION 43B READ WITH SECTION 36(1)(VA) OF THE ACT. 17. WE FURTHER NOTE THAT THOUGH THE LD. CIT(A) HAS NOT DISPUTED THE VARIOUS DECISIONS OF HONBLE RAJASTHAN HIGH COURT BUT HAS DECIDED TO FOLLOW THE DECISIONS RENDERED BY THE HONBLE DELHI, MADRAS, GUJARAT AND KERALA HIGH COURTS. GIV EN THE DIVERGENT VIEWS TAKEN BY THE VARIOUS HIGH COURTS AN D IN THE INSTANT CASE, THE FACT THAT THE JURISDICTION OVER T HE ASSESSING OFFICER LIES WITH THE HONBLE RAJASTHAN HIGH COURT, IN OUR CONSIDERED VIEW, THE LD CIT(A) OUGHT TO HAVE CONSID ERED AND FOLLOWED THE DECISION OF THE JURISDICTIONAL RAJASTH AN HIGH COURT, AS EVIDENT FROM SERIES OF DECISIONS REFERRED SUPRA, AS THE SAME IS BINDING ON ALL THE APPELLATE AUTHORITIES AS WELL AS THE ASSESSING OFFICER UNDER ITS JURISDICTION IN THE STATE OF RAJA STHAN. ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 9 18. IN LIGHT OF AFORESAID DISCUSSION AND IN THE ENT IRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION BY WAY OF ADJUSTMENT WHILE PROCESSING THE RETURN OF INCOME U/S 143(1) AM OUNTING TO RS 4,38,530/- SO MADE BY THE CPC TOWARDS THE DELAYED D EPOSIT OF THE EMPLOYEESS CONTRIBUTION TOWARDS ESI AND PF THO UGH PAID WELL BEFORE THE DUE DATE OF FILING OF RETURN OF INC OME U/S 139(1) OF THE ACT IS HEREBY DIRECTED TO BE DELETED AS THE SAME CANNOT BE DISALLOWED UNDER SECTION 43B READ WITH SECTION 36(1 )(VA) OF THE ACT IN VIEW OF THE BINDING DECISIONS OF THE HONBLE RAJASTHAN HIGH COURT. 6. IN THE INSTANT CASE, ADMITTEDLY AND UNDISPUTEDLY , THE EMPLOYEES CONTRIBUTION TO ESI AND PF COLLECTED BY THE ASSESSE E FROM ITS EMPLOYEES HAVE BEEN DEPOSITED WELL BEFORE THE DUE DATE OF FIL ING OF RETURN OF INCOME U/S 139(1) OF THE ACT. FURTHER, THE LD D/R HAS REFERRED TO THE EXPLANATION TO SECTION 36(1)(VA) AND SECTION 43B BY THE FINANCE ACT, 2021 AND HAS ALSO REFERRED TO THE RATIONALE OF THE AMENDMENT AS EXPLAINED BY THE MEMORANDUM IN THE FINANCE BILL, 20 21, HOWEVER, WE FIND THAT THERE ARE EXPRESS WORDINGS IN THE SAID ME MORANDUM WHICH SAYS THESE AMENDMENTS WILL TAKE EFFECT FROM 1 ST APRIL, 2021 AND WILL ACCORDINGLY APPLY TO ASSESSMENT YEAR 2021-22 AND SU BSEQUENT ASSESSMENT YEARS. IN THE INSTANT CASE, THE IMPUGNED ASSESSMENT YEAR IS ASSESSMENT YEAR 2019-20 AND THEREFORE, THE SAID AMENDED PROVISIONS CANNOT BE APPLIED IN THE INSTANT CASE. SIMILAR VIE W HAS BEEN TAKEN BY THE COORDINATE BANGALORE BENCHES IN CASE OF SHRI GOPALKRISHNA ASWINI KUMAR VS. ACIT (SUPRA) WHEREIN IT HAS HELD AS UNDER:- ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 10 7. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE O F ESSAE TERAOKA PVT. LTD., (SUPRA) HAS TAKEN THE VIEW THAT EMPLOYEE'S CONTRIBUTION UNDER SECTION 36(1)(VA) OF THE ACT WOU LD ALSO BE COVERED UNDER SECTION 43B OF THE ACT AND THEREFORE IF THE SHARE OF THE EMPLOYEE'S SHARE OF CONTRIBUTION IS MA DE ON OR BEFORE DUE DATE FOR FURNISHING THE RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT, THEN THE ASSESSEE WOULD BE ENTITLED TO CLAIM DEDUCTION. THEREFORE, THE ISSUE I S COVERED BY THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT . THE NEXT ASPECT TO BE CONSIDERED IS WHETHER THE AMENDME NT TO THE PROVISIONS TO SECTION 43B AND 36(1)(VA) OF THE ACT BY THE FINANCE ACT, 2021, HAS TO BE CONSTRUED AS RETROSPEC TIVE AND APPLICABLE FOR THE PERIOD PRIOR TO 01.04.2021 ALSO. ON THIS ASPECT, WE FIND THAT THE EXPLANATORY MEMORANDUM TO THE FINANCE ACT, 2021 PROPOSING AMENDMENT IN SECTION 36 (1)(VA) AS WELL AS SECTION 43B IS APPLICABLE ONLY FROM 01.0 4.2021. THESE PROVISIONS IMPOSE A LIABILITY ON AN ASSESSEE AND THEREFORE CANNOT BE CONSTRUED AS APPLICABLE WITH RETROSPECTIVE EFFECT UNLESS THE LEGISLATURE SPECIFI CALLY SAYS SO. IN THE DECISIONS REFERRED TO BY US IN THE EARLIER P ARAGRAPH OF THIS ORDER ON IDENTICAL ISSUE THE TRIBUNAL HAS TAKE N A VIEW THAT THE AFORESAID AMENDMENT IS APPLICABLE ONLY PRO SPECTIVELY I.E., FROM 1.4.2021. WE ARE THEREFORE OF THE VIEW T HAT THE IMPUGNED ADDITIONS MADE UNDER SECTION 36(1)(VA) OF THE ACT IN BOTH THE ASSESSMENT YEARS DESERVES TO BE DELETED . ITA NO. 105 /JP/2021 M/S PEE TEE TURNERS 11 7. IN LIGHT OF THE AFORESAID DISCUSSIONS AND IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE AND FOLLOWING THE CON SISTENT DECISIONS TAKEN BY THE VARIOUS BENCHES OF THE TRIBUNAL, THE A DDITION BY WAY OF ADJUSTMENT WHILE PROCESSING THE RETURN OF INCOME U/ S 143(1) AMOUNTING TO RS 6,28,972/- SO MADE BY THE CPC TOWARDS THE DEP OSIT OF THE EMPLOYEESS CONTRIBUTION TOWARDS ESI AND PF THOUGH PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) O F THE ACT IS HEREBY DIRECTED TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED ORDER PRONOUNCED IN THE OPEN COURT ON 28/10/2021. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/10/2021. * SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S PEE TEE TURNERS, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ASSISTANT DIRECTOR, CPC, BENGALURU . 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 105/JP/2021} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR