DELLA ADVENTURE AND RESORTS PVT. LTD., MUMBAI V. NFAC, DELHI, DELHI

ITA 1708/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8041 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2018-2019
• Appeal Filed On: 28-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 43B; 143(1); 192; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) ITA No. 1708/MUM/2022 Assessment Year: 2018-19 & ITA No. 1707/MUM/2022 Assessment Year: 2019-20 Della Adventure and Resorts Pvt. Ltd., 401, Della Tower, 795 Parsi Colony, Jam-e-Jamshed Road, Mumbai-400014. Vs. National Faceless Appeal Centre (NFAC), Delhi, PAN No. AADCD 2549 K Appellant Respondent Assessee by : Mr. Hitesh P. Shah, AR Revenue by : Mr. T. Shankar, CIT-DR Date of Hearing : 05/09/2022 Date of pronouncement : 12/09/2022 ORDER PER OM PRAKASH KANT, AM These two appeals by the assessee are directed against two separate orders, both dated 05.05.2022, passed by the National Faceless Appeal Centre (hereinafter shall be referred as ‘the Ld. First Appellate Authority’), for assessment year 2018-19 & 2019-20 respectively. As common grounds of appeal these appeals, therefore same by way this consolidated order for convenience. 2. The grounds raised by the assessee in assessment year 2018 19 are reproduced as under: 1. On the facts and in the circumstances of the case and in law, the Commissioner employees' contribution Rs. 11,58,655/ contributions to Provident Fund Rs. 11,58,655/ administration charges Rs. 1,11,145/ 24,28,455/ 2. On the f the Commissioner (Appeals), without considering the facts on record and submissions filed, erred in confirming the disallowance of Rs. 11,58,655/ 1961 being the employer though the appellant company had deposited employers' contribution to Provident Fund before the due date of filing the return of income and hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do no employers' contribution to Provident Fund. 3. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition of Rs. 11,58,655/ Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & . As common grounds of appeal have these appeals, therefore same were heard together and by way this consolidated order for convenience. The grounds raised by the assessee in assessment year 2018 19 are reproduced as under: On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in disallowing the employees' contribution Rs. 11,58,655/- contributions to Provident Fund Rs. 11,58,655/ administration charges Rs. 1,11,145/- aggregating to Rs. 24,28,455/- u/s. 36(1)(va) of the I.T. Act, 1961. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals), without considering the facts on record and submissions filed, erred in confirming the disallowance of Rs. 11,58,655/- u/s. 36(1)(va) of the I.T. Act, 1961 being the employers' contribution to Provident Fund though the appellant company had deposited employers' contribution to Provident Fund before the due date of filing the return of income and hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do no employers' contribution to Provident Fund. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition of Rs. 11,58,655/- u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act, Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 2 been raised in were heard together and disposed off The grounds raised by the assessee in assessment year 2018- On the facts and in the circumstances of the case and in law, (Appeals) erred in disallowing the employers' contributions to Provident Fund Rs. 11,58,655/- and PF aggregating to Rs. acts and in the circumstances of the case and in law, the Commissioner (Appeals), without considering the facts on record and submissions filed, erred in confirming the u/s. 36(1)(va) of the I.T. Act, s' contribution to Provident Fund though the appellant company had deposited employers' contribution to Provident Fund before the due date of filing the return of income and hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do not apply to On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act, 1961, to the employees' contribution to Provident Fund. 4. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition of Rs. 1,11,145/ 1961, to the income of the appellant company being Provident fund administration & other charges though the appellant company had deposited Provident fund administration & other charges before the due date of filing the return of income an Section 36(1)(va) of the Act do not apply to Provident fund administration & other charges. 5. The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before the due date for filing the company cannot be disallowed and added to the income of the appellant company. 6. The Commissioner (Appeal) erred in not considering the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permit returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra 7. Your appellant craves leave to add to, alter, amend or delete any of the foregoing grounds of appeal. Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1961, to the income of the appellant company being the employees' contribution to Provident Fund. On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition of Rs. 1,11,145/- u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act, 1961, to the income of the appellant company being Provident fund administration & other charges though the appellant company had deposited Provident fund administration & other charges before the due date of filing the return of income and hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do not apply to Provident fund administration & other charges. The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before the due date for filing the return of income of the appellant company cannot be disallowed and added to the income of the appellant company. The Commissioner (Appeal) erred in not considering the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra-virus. Your appellant craves leave to add to, alter, amend or delete any of the foregoing grounds of appeal. Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 3 income of the appellant company being the On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition of the I.T. Act, 1961, to the income of the appellant company being Provident fund administration & other charges though the appellant company had deposited Provident fund administration & other charges before the due date of filing the return of d hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do not apply to Provident fund The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before return of income of the appellant company cannot be disallowed and added to the income of the The Commissioner (Appeal) erred in not considering the ground raised by the Appellant Company that the ted adjustment to the returned income U/s 143(1) of the Act: and hence the action Your appellant craves leave to add to, alter, amend or delete 2.1 The grounds raised by the assessee in 20 are reproduced as under: 1. On the facts and in the circumstances of the case and Rs. 2. in law, the Commissioner (Appeals) erred in disallowing the employees' contribution Rs. 10,76,069/ u/s. 36(1)(va) of the I.T. A 2. The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR employees' contribution to Provident Fund deposited before the due date for filing the return of income of the appellant company cannot be disallowed and added to the income of the appellant company. 3. The Commissioner (A ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra 3. We have heard riva dispute and perused the relevant material on record including the order of the lower authorities. We find that issue 2018-19 is in respect of disallowance of employer and employee Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & The grounds raised by the assessee in assessment year 2019 20 are reproduced as under: On the facts and in the circumstances of the case and Rs. 2. in law, the Commissioner (Appeals) erred in disallowing the employees' contribution Rs. 10,76,069/- to Provident Fund u/s. 36(1)(va) of the I.T. Act, 1961. The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before the due date for filing the return of income of the appellant company cannot be disallowed and added to the income of the appellant company. The Commissioner (Appeal) erred in not considering the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra-virus. We have heard rival submission of the parties and perused the relevant material on record including the order of the lower authorities. We find that issue-in 19 is in respect of disallowance of employer and employee Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 4 assessment year 2019- On the facts and in the circumstances of the case and Rs. 2. in law, the Commissioner (Appeals) erred in disallowing the to Provident Fund The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before the due date for filing the return of income of the appellant company cannot be disallowed and added to the income of the ppeal) erred in not considering the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action l submission of the parties on the issue-in- and perused the relevant material on record including the in-dispute in AY 19 is in respect of disallowance of employer and employee contribution to PF paid after due date prescribed under relevant Provident Fund Act, however same was paid before due date of filing of return of income. In AY 2019 respect of employee’s contribution to Provident Fund. These disallowances were ma Bangalore in processing u/s 143(1) of the Income 3.1 We find that issue assessee by the order of the Tribunal in the case of Maharashtra Tourism Develop 6425, 6426 & 1140/Mum/2017 2012-3 & 2014-15. The relevant finding of the Tribunal is reproduced as under: “16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is no question of allowance of differential payment of never been paid by the assessee and the amount which are not paid by the assessee amounting to employees contribution of provident fund. The balance amount of ₹9,08,873/- was paid after the due date as prescribed under the Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & paid after due date prescribed under relevant Provident Fund Act, however same was paid before due date of filing of return of income. In AY 2019-20, disallowance is only in respect of employee’s contribution to Provident Fund. These disallowances were made by the Central Processing Centre, Bangalore in processing u/s 143(1) of the Income-tax Act, 1961. We find that issue-in-dispute is covered in favour of the assessee by the order of the Tribunal in the case of Maharashtra Tourism Development Corporation Ltd. in ITA No. 6425, 6426 & 1140/Mum/2017 for assessment years 2011 15. The relevant finding of the Tribunal is reproduced as under: 16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is no question of allowance of differential payment of ₹65,462/ never been paid by the assessee and the amount which are not paid by the assessee amounting to ₹1,28,798/- being claimed on account of employees contribution of provident fund. The balance amount of was paid after the due date as prescribed under the Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 5 paid after due date prescribed under relevant Provident Fund Act, however same was paid before due date of 20, disallowance is only in respect of employee’s contribution to Provident Fund. These de by the Central Processing Centre, tax Act, 1961. dispute is covered in favour of the assessee by the order of the Tribunal in the case of DCIT v. M/s ment Corporation Ltd. in ITA No. for assessment years 2011-12, 15. The relevant finding of the Tribunal is 16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is ₹65,462/- which has never been paid by the assessee and the amount which are not paid by claimed on account of employees contribution of provident fund. The balance amount of was paid after the due date as prescribed under the provident fund Act. She stated that the Assessing Officer clearly brought out the amount due and amount p stated that there is an amendment in the Provisions of Section 36(va), wherein explanation 2 was added by the Finance Act 2021, with effect from 01.04.2021 and the relevant explanation read as under: “[Explanation- provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the “due date” under this clause;] 17. The learned CIT DR stated that this and normal presumption is that these provisions have from the very inception, once it is clarificatory for this, she relied on CIT v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold Coin Health Food (P.) Ltd [2008] 304 ITR 308 (SC). 18. On the other hand, the learned Counsel for the assessee relied on the decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad dated 15.06.2021, wherein it is held that the provident fund contribution received from employees deposited by assessee before the due date of filing of return under section 139(1) of the Act but after the due date prescribed in the relevant statute of allowed despite the fact that legislation has not only incorporated necessary amendment in section 36(1)(va) of the Act by inserting explanation 2 as well as explanation 5 to section 43B vide Finance Act, 2021 with effect from 0 provisions of section shall not apply and shall be deemed to have been applied to a sum received by assessee from any of his employees covered Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & provident fund Act. She stated that the Assessing Officer clearly brought out the amount due and amount paid. Now, the learned CIT DR further stated that there is an amendment in the Provisions of Section 36(va), wherein explanation 2 was added by the Finance Act 2021, with effect from 01.04.2021 and the relevant explanation read as under: -2- For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the “due date” under 17. The learned CIT DR stated that this is only clarificatory explanation and normal presumption is that these provisions have been in the Act from the very inception, once it is clarificatory for this, she relied on CIT v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold Health Food (P.) Ltd [2008] 304 ITR 308 (SC). 18. On the other hand, the learned Counsel for the assessee relied on the decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad dated 15.06.2021, wherein it is held that the provident fund contribution received from employees deposited by assessee before the due date of filing of return under section 139(1) of the Act but after the due date prescribed in the relevant statute of provident Fund Act is to be allowed despite the fact that legislation has not only incorporated necessary amendment in section 36(1)(va) of the Act by inserting explanation 2 as well as explanation 5 to section 43B vide Finance Act, 2021 with effect from 01.04.2021, wherein it is clarified that the provisions of section shall not apply and shall be deemed to have been applied to a sum received by assessee from any of his employees covered Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 6 provident fund Act. She stated that the Assessing Officer clearly brought aid. Now, the learned CIT DR further stated that there is an amendment in the Provisions of Section 36(va), wherein explanation 2 was added by the Finance Act 2021, with effect from 01.04.2021 and the relevant explanation read as under: - For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the “due date” under is only clarificatory explanation been in the Act from the very inception, once it is clarificatory for this, she relied on CIT v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold 18. On the other hand, the learned Counsel for the assessee relied on the decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad – Trib.) dated 15.06.2021, wherein it is held that the provident fund contribution received from employees deposited by assessee before the due date of filing of return under section 139(1) of the Act but after the provident Fund Act is to be allowed despite the fact that legislation has not only incorporated necessary amendment in section 36(1)(va) of the Act by inserting explanation 2 as well as explanation 5 to section 43B vide Finance Act, 1.04.2021, wherein it is clarified that the provisions of section shall not apply and shall be deemed to have been applied to a sum received by assessee from any of his employees covered by section 2(24)(x) of the Act because this explanations are prospect and not retrospective. The relevant Para 2 of the case reads as under: “2. Coming to the sole substantive issue of ESI/PF disallowance of Rs. 1,09,343/- and Rs. 3,52,622/ the same has been paid before the and after the due date prescribed in the corresponding statutes; respectively. I notice in only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1 It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowance against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1 disallowance is not sustainable in even if the Revenue's case is supported by the following case law.” 19. In view of the above, we are of the view that the legislative amendments incorporated in section 36(1)(va) and 43B of the Act by the Finance Act, the respective provisions, are prospective in application with effect from 01.04.2021. Hence, we find no infirmity in the order of Commissioner of Income Tax (Appeals). Hence, the appeal of the Revenue 3.2 Further, the Tribunal in ITA No. 2059/M/2021 in the case of M/s Haldiram Foods International Pvt. Ltd. has held that amended Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & by section 2(24)(x) of the Act because this explanations are prospect and not retrospective. The relevant Para 2 of the case reads as under: “2. Coming to the sole substantive issue of ESI/PF disallowance of Rs. and Rs. 3,52,622/-, the assessee's and revenue's stand is that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively. I notice in this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as de Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1 It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1-4-2021, I hold that the impugned disallowance is not sustainable in view of all these latest developments even if the Revenue's case is supported by the following case law.” 19. In view of the above, we are of the view that the legislative amendments incorporated in section 36(1)(va) and 43B of the Act by the Finance Act, 2021 by inserting explanation 2 and explanation 5 to the respective provisions, are prospective in application with effect from 01.04.2021. Hence, we find no infirmity in the order of Commissioner of Income Tax (Appeals). Hence, the appeal of the Revenue is dismissed. Further, the Tribunal in ITA No. 2059/M/2021 in the case of M/s Haldiram Foods International Pvt. Ltd. has held that amended Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 7 by section 2(24)(x) of the Act because this explanations are prospective and not retrospective. The relevant Para 2 of the case reads as under: - “2. Coming to the sole substantive issue of ESI/PF disallowance of Rs. , the assessee's and revenue's stand is that due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as de Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1-4-2021 only. It is further not an issue that the forergoing legislative amendments s u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only 2021, I hold that the impugned view of all these latest developments even if the Revenue's case is supported by the following case law.” 19. In view of the above, we are of the view that the legislative amendments incorporated in section 36(1)(va) and 43B of the Act by 2021 by inserting explanation 2 and explanation 5 to the respective provisions, are prospective in application with effect from 01.04.2021. Hence, we find no infirmity in the order of Commissioner of is dismissed.” Further, the Tribunal in ITA No. 2059/M/2021 in the case of M/s Haldiram Foods International Pvt. Ltd. has held that amended provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be effective from the assessment year 2021 the Tribunal is reproduced as under: “11. In view of what has been discussed above, we are of the considered view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable f under consideration i.e. A.Y. 2018 from A.Y. 2021 same. Resultantly, impugned order passed by Ld. CIT(A) is not sustainable in the eyes of law hence s the employees’ contribution deposited by the assessee well before filing the return of income. Hence, appeal filed by the assessee is allowed. 3.3 Further Tribunal, Delhi Bench in order dated 22.03.2022 in case of M/s Chintoo Creations v. DCIT in ITA No. 1772/Del/2021 held as under : “(D.2.1) In view of foregoing discussion, we come to the following conclusions: (a) The fact that payments amounting to aforesaid Rs.21,63,304/ provident fund and ESI were made by the assessee after stipulated date prescribed under the relevant laws governing provident fund and ESI, but before the Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be effective from the assessment year 2021-22. The relevant finding of the Tribunal is reproduced as under: 11. In view of what has been discussed above, we are of the considered view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable f under consideration i.e. A.Y. 2018-19 as the amendment will be effective from A.Y. 2021-22 and the AO/ Ld. CIT(A) have erred in disallowing the same. Resultantly, impugned order passed by Ld. CIT(A) is not sustainable in the eyes of law hence set aside and AO is directed to allow the employees’ contribution deposited by the assessee well before filing the return of income. Hence, appeal filed by the assessee is allowed. Further Tribunal, Delhi Bench in order dated 22.03.2022 in Chintoo Creations v. DCIT in ITA No. 1772/Del/2021 (D.2.1) In view of foregoing discussion, we come to the following (a) The fact that payments amounting to aforesaid Rs.21,63,304/- by way of employees contribution to provident fund and ESI were made by the assessee after stipulated date prescribed under the relevant laws governing provident fund and ESI, but before the Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 8 provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be relevant finding of 11. In view of what has been discussed above, we are of the considered view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable for the year 19 as the amendment will be effective 22 and the AO/ Ld. CIT(A) have erred in disallowing the same. Resultantly, impugned order passed by Ld. CIT(A) is not et aside and AO is directed to allow the employees’ contribution deposited by the assessee well before filing the return of income. Hence, appeal filed by the assessee is allowed.” Further Tribunal, Delhi Bench in order dated 22.03.2022 in Chintoo Creations v. DCIT in ITA No. 1772/Del/2021 (D.2.1) In view of foregoing discussion, we come to the following (a) The fact that payments amounting to aforesaid by way of employees contribution to provident fund and ESI were made by the assessee after stipulated date prescribed under the relevant laws governing provident fund and ESI, but before the due date of filing of return of income prescribed u/s 139(1) of Income Tax Act; is not in dispute. (b) Whether the aforesaid amendments to Income Tax Act by way of Finance Act, 2021 are retrospective or prospective, is debatable and controversial. (c) Adj Tax Act, whereby aforesaid additions of Rs.21,63,304/ were made, were unfair, unjust and bad in law. (d) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act on debatable and controversial issues is beyond the scope of Section 143(1) of Income Tax Act. Revenue was clearly in error in making the aforesaid adjustments. (e) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act, on the basis of retrospective amendment to Inc Section 143(1) of Income Tax Act. (f) In the present appeal before us, addition of aforesaid amount of Rs.21,63,304/ adjustments and intimation u/s 143(1) of Income Tax Act, on a debatable and co err in law, in not deleting this addition. (E) In the light of the foregoing conclusions in paragraph (D.2.1) of this order, we are of the view that the aforesaid additions of Rs.21,63,304/ by way of adjustment and i Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & of filing of return of income prescribed u/s 139(1) of Income Tax Act; is not in dispute. (b) Whether the aforesaid amendments to Income Tax Act by way of Finance Act, 2021 are retrospective or prospective, is debatable and controversial. (c) Adjustments made by Revenue u/s 143(1) of Income Tax Act, whereby aforesaid additions of Rs.21,63,304/ were made, were unfair, unjust and bad in law. (d) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act on debatable and controversial issues is beyond the scope of Section 143(1) of Income Tax Act. Revenue was clearly in error in making the aforesaid adjustments. (e) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act, on the basis of retrospective amendment to Income Tax Act is beyond the scope of Section 143(1) of Income Tax Act. (f) In the present appeal before us, addition of aforesaid amount of Rs.21,63,304/- has been made by way of adjustments and intimation u/s 143(1) of Income Tax Act, on a debatable and controversial issue, and Ld. CIT(A) did err in law, in not deleting this addition. (E) In the light of the foregoing conclusions in paragraph (D.2.1) of this order, we are of the view that the aforesaid additions of Rs.21,63,304/ by way of adjustment and intimation u/s 143(1) of Income Tax Act were Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 9 of filing of return of income prescribed u/s 139(1) of (b) Whether the aforesaid amendments to Income Tax Act by way of Finance Act, 2021 are retrospective or ustments made by Revenue u/s 143(1) of Income Tax Act, whereby aforesaid additions of Rs.21,63,304/- (d) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act on debatable and controversial issues is beyond the scope of Section 143(1) of Income Tax Act. Revenue was clearly in error in making the aforesaid (e) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act, on the basis of retrospective ome Tax Act is beyond the scope of (f) In the present appeal before us, addition of aforesaid has been made by way of adjustments and intimation u/s 143(1) of Income Tax Act, ntroversial issue, and Ld. CIT(A) did (E) In the light of the foregoing conclusions in paragraph (D.2.1) of this order, we are of the view that the aforesaid additions of Rs.21,63,304/- ntimation u/s 143(1) of Income Tax Act were beyond the scope of Section 143(1) of Income the Ld. CIT(A) erred in law in confirming the aforesaid addition on a debatable and controversial issue. Accordingly, we set aside the impugned appellate order dated 09.09.2020 of the Ld. CIT(A), and direct the Assessing Officer to delete the aforesaid addition of Rs.21,63,304/ (E.1) By way of abundant caution, we hereby clarify that we have not expressed any view in this order, on whether t brought in by Finance Act, 2021 [whereby Explanation Section 36(1)(va) of Income Tax Act and Explanation Section 43B of Income Tax Act] are prospective or retrospective. In the light of our decisi is merely academic in nature; hence not decided. 3.4 Respectfully following the above decisions of the Tribunal, we hold that no disallowance in the case of the assessee issue. The grounds raised by the assessee are accordingly both the appeals. 4. In the result, the appeals filed by the assessee are allowed. Order pronounced in the open Court in Sd/- (AMIT SHUKLA JUDICIAL MEMBER Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & beyond the scope of Section 143(1) of Income Tax Act; and further, that the Ld. CIT(A) erred in law in confirming the aforesaid addition on a debatable and controversial issue. Accordingly, we set aside the ned appellate order dated 09.09.2020 of the Ld. CIT(A), and direct the Assessing Officer to delete the aforesaid addition of Rs.21,63,304/ (E.1) By way of abundant caution, we hereby clarify that we have not expressed any view in this order, on whether the aforesaid amendments brought in by Finance Act, 2021 [whereby Explanation-2 was inserted in Section 36(1)(va) of Income Tax Act and Explanation-5 was inserted in Section 43B of Income Tax Act] are prospective or retrospective. In the light of our decision in foregoing paragraph (E) of this order; this issue is merely academic in nature; hence not decided.” Respectfully following the above decisions of the Tribunal, we hold that no disallowance for delayed payment of PF assessee u/s 143(1) of the Act being debatable The grounds raised by the assessee are accordingly In the result, the appeals filed by the assessee are allowed. unced in the open Court in 12/09 Sd/ AMIT SHUKLA) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 10 Tax Act; and further, that the Ld. CIT(A) erred in law in confirming the aforesaid addition on a debatable and controversial issue. Accordingly, we set aside the ned appellate order dated 09.09.2020 of the Ld. CIT(A), and direct the Assessing Officer to delete the aforesaid addition of Rs.21,63,304/- (E.1) By way of abundant caution, we hereby clarify that we have not he aforesaid amendments 2 was inserted in 5 was inserted in Section 43B of Income Tax Act] are prospective or retrospective. In the on in foregoing paragraph (E) of this order; this issue Respectfully following the above decisions of the Tribunal, we for delayed payment of PF could be made u/s 143(1) of the Act being debatable The grounds raised by the assessee are accordingly allowed in In the result, the appeals filed by the assessee are allowed. /09/2022. Sd/- OM PRAKASH KANT) MEMBER Mumbai; Dated: 12/09/2022 Dragon Legal/Rahul Sharma, Sr. P.S. 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. //True Copy// Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai Della Adventure & Resorts Pvt. Ltd. ITA Nos. 1708 & 1707/M/2022 11 Sr. Private Secretary) ITAT, Mumbai