RAJCO METAL INDUSTRIES PVT. LTD., MUMBAI V. DCIT, CPC-BANGALORE 2(3)(1), MUMBAI

ITA 1897/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2209 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC-1
• Assessment Year: 2019-2020
• Appeal Filed On: 13-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 43B; 143(1); 192; 139(1)

Judgement Text

म ु ंबई ठ “ एसएमस ” स , स ए ं एस. !" #म $, %& स % सम' IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER सं.1897/म ु ं/2021 ( $. . 2019-20) ITA NO.1897/MUM/2021(A.Y.2019-20) M/s. Rajco Metal Industries Pvt. Ltd. 19, Oriental Insurance Building, 31, Dr.V.B.Gandhi Marg, Fort, Mumbai 400 023 PAN: AAACR-5185-N ...... ./Appellant ब$ म Vs. Dy. Commissioner of Income Tax(CPC)-2(3)1 Bengaluru -560 500 ...... / 0 /Respondent . 1 / Appellant by :Shri Sanjay Parikh / 0 1 /Respondent by :Shri Anil Gupta स ु $ ई 2 0 / Date of hearing : 17/05/2022 345 2 0 / Date of pronouncement : 17/05/2022 %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 30/08/2021, for the assessment year 2019-20. 2. Shri Sanjay Parikh 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.1897/MUM/2021(A.Y.2019-20) Acts but paid before the due date of filing return of income u/s. 139(1) of the Act. 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 01/07/2020 disallowed aforesaid contributions u/s. 43B of the Act. The CIT(A) following the decision in the case of Gujarat State Transport Corporation, 41 taxmann.com 100 and some other judgments rendered by 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 ITR1(Bom) and CIT vs. Ghatge Patil Transport Ltd., 368 ITR 749(Bom). 2.1 The ld.Authorized Representative for the assessee stated that he is not pressing ground No.A of the appeal. 3. Per contra Shri Anil Gupta 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 the 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 for our consideration is whether employees contribution towards Provident Fund and ESIC made by the assessee after due date as specified under 3 ITA NO.1897/MUM/2021(A.Y.2019-20) the relevant Acts but paid before due date 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 effectively 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 prospective, 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.) 4 ITA NO.1897/MUM/2021(A.Y.2019-20) (viii)Vidhi Clothing Company v. Deputy Commissioner of Income-tax[2022] 135 taxmann.com 327 (Bang- Trib.) (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 by the Finance Act, 2021 has been held to be prospective, the decision rendered in the case of CIT vs. Ghatge Patil Transport Ltd.(supra) would be applicable on issue in hand. 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 of filing return of income would be allowable u/s. 36(1)(va) of the Act. 7. The ld. Authorized Representative for the assessee stated at Bar that is not pressing ground-A of the appeal. Therefore, the same is dismissed as not pressed. 8. In the result, appeal by assessee is partly allowed. Order pronounced in the open court on Tuesday the 17 th day of May, 2022. Sd/- Sd/- (S.RIFAUR RAHMAN) (VIKAS AWASTHY) %& स /ACCOUNTANT MEMBER स /JUDICIAL MEMBER म ु ंबई/ Mumbai, 7 $ ं /Dated17/05/2022 Vm, Sr. PS(O/S) 5 ITA NO.1897/MUM/2021(A.Y.2019-20) त ल प अ े षतCopy of the Order forwarded to : 1. ./The Appellant , 2. / 0 / The Respondent. 3. ु 80( )/The CIT(A)- 4. ु 80CIT 5. 9 : / 0 $ , . . ., म ु बंई/DR, ITAT, Mumbai 6. : ;< ! = /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar)ITAT, Mumbai