M/S. MEREMMA BASAVARAJ BELLI, MUMBAI V. ADIT CPC, MUMBAI

ITA 1489/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3290 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2019-2020
• Appeal Filed On: 26-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 143(1)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “SMC” Bench, Mumbai Shri Shamim Yahya (AM) I.T.A. No. 1489/Mum/2021 (A.Y. 2019-20) M/s. Meremma Basavaraj Belli C-117, Nitya Anand Chawl Mukund Nagar Dharavi Mumbai-400 017. PAN : AQFPB5620G Vs. ACIT, CPC Bengaluru (Appellant) (Respondent) Assessee by Shri Devendra Jain Department by Ms. Usha Gaikwad Date of Hearing 28.04.2022 Date of Pronouncement 29.04.2022 O R D E R This appeal by the assessee is directed against the order of learned CIT(A) dated 24.6.2921 pertains to A.Y. 2019-20. 2. The solitary issue in dispute is disallowance of EPF and ESI contribution under section 36(1)(va) of the I.T. Act by the CPC, Bangaluru adjustment under section 143(1) and confirmed by NFAC. 3. Against this order the assessee is in appeal before the ITAT. 4. I have heard both the parties and perused the record. I find that prior to the amendment there were Hon'ble Bombay High Court decision in CIT Vs. Ghatge Patil Transport Pvt. Ltd. (ITA No. 1002 of 2012 order dated 14.10.2014 following Hon'ble Supreme Court decision in Alom Extrusions Ltd. (319 ITR 306) which laid down that deposits of the sum up to the date of filing of return is sufficient compliance. The Finance Act, 2021 has provided an explanation in this regard for the disallowance of the sum which is paid after the due date. When this fact is taken into account by no stretch of imagination it can said that the above said adjustment can fall under the category of 143(1) prima- M/s. Meremma Basavaraj Belli 2 facie adjustment. Hence, I hold that CPC has no jurisdiction of adjustment u/s. 143(1) on this issue where admittedly there were decisions in favour of the assessee from the Hon’ble High Courts and the legislature has brought in an Explanation by Finance Act, 2021 in this regard subsequently. Moreover, as regards, merits of the case the aforesaid explanation was added by Finance Act, 2021 and the said explanation in my considered opinion cannot be said to be retrospective. The assessment year during the present case is AY 2018-19 and is prior to the said amendment/insertion. Hence, on merits also, the issue is covered in favour of the assessee as before the amendment, there were decisions of Hon’ble Bombay High Court and Hon'ble Supreme Court in favor of assessee on the said issue. 5. In the result, the appeal by the assessee is allowed and the orders of the authority below are set aside. Order pronounced in the open court on 29.04.2022. Sd/- (SHAMIM YAHYA) ACCOUNTANT MEMBER Mumbai; Dated : 29/04/2022 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai