A G Enviro Infra Projects Pvt Ltd, Thane V. Assistant Director of Income Tax, CPC Bangalore

ITA 110/MUM/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2070 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2019-2020
• Appeal Filed On: 19-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B; 143(1); 192; 139(1)

Judgement Text

म ु ंबई ठ “ए ” , ए ं ए . !" हम न, %& % म' IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ A”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI S.RIFAUR RAHMAN , ACCOUNTANT MEMBER ं.110/म ु ं/2022 ( न. . 2019-20) ITA NO.110/MUM/2022(A.Y.2019-20) A.G.Enviro Infra Projects Pvt. Ltd. 1403/04, Dev Corpora, Near Cadbury Junction, Kopat, Thane- 400 601. PAN: AAFCA-1820-L ...... . /Appellant बन म Vs. Asstt. Director of Income Tax CPC Bangalore, Bangalore -560 500. ..... / 0 /Respondent . 1 / Appellant by : Shri Gaurav A. Potdar / 0 1 /Respondent by : Shri Mehul Jain ु न ई 2 0 / Date of hearing : 18/05/2022 345 2 0 / Date of pronouncement : 18/05/2022 %श/ ORDER PER VIKAS AWASTHY, JM: This appeal by the assessee is directed against the order of Commissioner of Income Tax(Appeals), National Faceless Appeal Centre, Delhi [in short 'the CIT(A) ’] dated 22/11/2021, for the assessment year 2019-20. 2. Shri Gaurav A. Potdar appearing on behalf of the assessee submitted that the solitary issue in the present appeal is disallowance of Employees contribution to Provident Fund and ESIC paid after the due date as specified under the relevant 2 ITA NO.110/MUM/2022(A.Y.2019-20) Acts. The ld.Authorized Representative for the assessee submitted that the Central Processing Centre (CPC), Bengaluru vide intimation u/s. 143(1) of the Act dated 09/05/2020 disallowed aforesaid contributions u/s. 43B of the Act. The CIT(A) following the decision in the case of Unifac Management Services (India) (P) Ltd. vs. DCIT, 409 ITR 225(Madras) and other decisions rendered by Hon'ble non Jurisdictional High Courts disallowed assessee’s claim u/s. 36(1)(va) of the Act. The ld.Authorized Representative for the assessee vehemently submitted that the CIT(A) failed to follow the decision of Hon'ble Jurisdictional High Court in the case of Hindustan Organic Chemical Ltd., 366 ITR 1(Bom) and CIT vs. Ghatge Patil Transport Ltd., 368 ITR 749(Bom). The ld.Authorized Representative for the assessee further pointed that the CIT(A) further held that the amendment to Sec.36(1)(va) and Sec.43B of the Act by the Finance Act 2021, is retrospective. The ld.Authorized Representative for the assessee placed reliance on the decision of Crescent Roadways Pvt. Ltd. TS-510-ITAT-2021(Hyd) to contend that the said amendment is prospective w.e.f. 01/04/2021. 3. Per contra Shri Mehul Jain representing the Department vehemently defended the impugned order. The ld. Departmental Representative submitted that provisions of section 36(1)(va) of the Act has been amended by Finance Act,2021. In amendment the phrase “ shall be deemed never to have been applied” has been inserted to section 36(1)(va) and section 43B of the Act. This clearly shows that the amendment is retrospective. To support his contention ld. Departmental Representative placed reliance on the decision in the case of CIT vs. Gold Coin Food Processing Pvt. 172 Taxman 386(SC). 4. Both sides heard orders of authorities below examined and the decisions on which the rival sides have place reliance considered. The solitary issue in the present appeal is whether employees contribution towards Provident Fund and ESIC made by the assessee after due date as specified under the relevant Acts but 3 ITA NO.110/MUM/2022(A.Y.2019-20) before due date under section 139(1) of the Act for filing of return would enable the assessee to claim deduction under section 36(1)(va) of the Act. 5. The contention of Revenue is that by virtue of amendment to section 36(1)(va) and section 43B of the Act by Finance Act, 2021 the deduction is not allowable as the amendment is retrospective in application. We find that Chennai Bench of the Tribunal in the case of Adayar Ananda Bhavan Sweets India Pvt. Ltd. vs. ACIT 134 taxmann.com 56 has considered the issue of retrospective applicability of amendment to the provisions of section 36(1)(va) of the Act and also the amendment to section 43B of the Act by the Finance Act, 2021. The Co- ordinate Bench of Tribunal after considering various decisions held that the amendment to section 36(1)(va) of the Act and section 43B is prospective and would be applicable from the assessment year 2021-22. Similar view has been expressed by various Benches of the Tribunal. Some of the decisions holding amendment by Finance Act 2021 to Sec. 36(1)(va) and Sec.43B effective from assessment year 2021-22 are as under: (i) Yogi Ji Technoequip (P.) Ltd. v. Dy. CIT [2021]129 taxmann.com 313 (Delhi - Trib.) (ii) Mohangarh Engineers and Construction Company v. Deputy Commissioner of Income-tax, Banglore [2Q21] 133 taxmann.com 172 (Jodh. -Trib.) (iii) Salzgitter Hydraulics (P.) Ltd. v. Income-Tax Officer, Ward 3(11 Hyderabad [2021] 128 taxmann.com 192 (Hyd.- Trib.) (iv) Bizviz Technologies Ltd. v. Deputy Commissioner of Income-tax, Bangalore [2022] 134 taxmann.com 350 (Bang. - Trib.) (v) Flying Fabrication v. Deputy Commissioner of Income-tax[2021] 133 taxmann.com 84 (Delhi - Trib.) (vi)Eskay Heat Transfers (P.) Ltd. v. Assistant Director of Income –tax(2022) 134 taxmann.com 289 (Ban.Trib) (vii) Bromide Chemical Industries v. Deputy Commissioner of Income-tax [2022] 135 taxmann.com 79 (Jabalpur- Trib.) (viii) Vidhi Clothing Company v. Deputy Commissioner of Income- tax[2022] 135 taxmann.com 327 (Bang- Trib.) 4 ITA NO.110/MUM/2022(A.Y.2019-20) (ix) Megneil Tech (P.) Ltd. v. Commissioner of Income-tax, Bengaluru [2022] 135 taxmann.com 75 (Bang. - Trib.) (x) Raj Kumar v. ITD, CPC, Bengaluru [2022] 136 taxmann.com 244 [Del- Trib] 6. Since, the amendment to section 36(1)(va) and section 43B of the Act have been held to be prospective, the decision rendered in the case of CIT vs. Ghatge Patil Transport Ltd.(supra) would apply. Consequently, the contribution made by assessee towards ESI and Provident Fund made beyond the due date as specified in the relevant Act but before the due date for filing of return of income u/s 139(1) of the Act would be allowable u/s. 36(1)(va) of the Act. 7. In the result, appeal by assessee is allowed. Order pronounced in the open court on Wednesday the 18 th day of May, 2022. Sd/- Sd/- ( S.RIFAUR RAHMAN ) (VIKAS AWASTHY) %& /ACCOUNTANT MEMBER /JUDICIAL MEMBER म ु ंबई/ Mumbai, 7 न ं /Dated 18/05/2022 Vm, Sr. PS(O/S) त ल प अ े षतCopy of the Order forwarded to : 1. ./The Appellant , 2. / 0 / The Respondent. 3. ु 80( )/ The CIT(A)- 4. ु 80 CIT 5. 9 : / 0 न , . . ., म ु बंई/DR, ITAT, Mumbai 6. : ;< ! = /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai