M/s. J K Foot Wear, Bengaluru V. Centralized Processing Center, Benaluru

ITA 395/BANG/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2556 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2019-2020
• Appeal Filed On: 24-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 43B; 192; 139(1); 43; 6; 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER IT A NO S . 394 & 395 /BANG/2021 ASSESSMENT YEAR S : 2018 - 19 & 2019 - 20 M/S. J K FOOTWEAR, # 5, J.M. LANE, BALEPET CROSS, BENGALURU 560 053. PAN: AAHFJ 5 843M VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(2)(1), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : S MT. SUNAINA BHATIA, ADVO CATE RESPONDENT BY : SHRI PRIYADARSHI MISHRA, JT.CI T(DR)(ITAT), B ENGALURU. DATE OF HEARING : 27 . 1 0 .202 1 DATE OF PRONOUNCEMENT : 27 . 1 0 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS ARE BY THE ASSESSEE DIRECTED AGAIN ST THE SEPARATE ORDERS OF THE CIT(APPEALS), NATIONAL FACELESS APPEA L CENTRE [NFAC], DELHI DATED 28.7.2021 & 16.03.2021 FOR THE ASSESSMENT YEA RS 2018-19 & 2019-20 RESPECTIVELY. ITA NOS. 394 & 395/BANG/2021 PAGE 2 OF 11 2. THE ASSESSEE HAS RAISED COMMON GROUNDS OF APPEAL FOR BOTH THE ASSESSMENT YEARS, EXCEPT CHANGE IN FIGURES AND THE GROUNDS IN ITA NO.394/BANG/2021 ARE AS FOLLOWS:- 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR A S THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, W EIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX [APPEALS] / NATIONAL FACELESS APPEAL CENTRE [NFAC FOR SHORT] IS NOT JUSTIFIED IN UPHOLDING THE DETERMINATION OF TOTAL INCOME OF A PPELLANT IN THE INTIMATION U/S. 154 OF THE ACT, AT RS.75,98,460/-AS AGAINST THE RETURNED INCOME OF RS.71,60,430/-, ON ACCOUNT OF TH E DISALLOWANCE OF RS. 4,38,030/- MADE U/S.36[1][VA] O F THE ACT, BASED UPON THE DETAILS IN THE TAX . AUDIT REPORT OF THE CHARTERED ACCOUNTANT IN FORM 3CD, UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3. THE LEARNED CIT[A] / NFAC OUGHT TO HAVE APPRECIA TED THAT THE AFORESAID DISALLOWANCE OF RS. 4,38,030/- I N RESPECT OF THE BELATED PAYMENTS OF THE EMPLOYEE'S SHARE OF PF AND ESI WAS ALLOWABLE HAVING REGARD TO THE JUDGEMENT OF THE JUR ISDICTIONAL HIGH COURT IN THE CASE OF ESSAE TEROKA LIMITED REPO RTED IN 366 ITR 408 [KARL SINCE THE SAME HAS BEEN PAID BEFORE T HE DU DATE FOR FILING THE RETURN OF INCOME U/S 139(1) OF THE A CT AND HENCE. THE DISALLOWANCE MADE OUGHT TO HAVE BEEN DELETED. 4. THE LEARNED CIT[A] / NFAC IS NOT JUSTIFIED IN HO LDING THAT THE AMENDMENT MADE BY INSERTION OF EXPLANATION 2 TO THE PROVISIONS OF SECTION 36[1][VA] OF THE ACT AND THE INSERTION OF EXPLANATION 5 TO SECTION 43B OF THE ACT BY THE FINA NCE ACT, 2021 WITH EFFECT FROM 01/04/2021 WAS CLARIFICATORY / DEC LARATORY IN THE NATURE AND THEREFORE, THESE AMENDMENTS WERE RETROSP ECTIVE IN OPERATION UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. ITA NOS. 394 & 395/BANG/2021 PAGE 3 OF 11 4.1 THE LEARNED CIT[A] / NFAC OUGHT TO HAVE APPRECI ATED THAT THE AFORESAID AMENDMENTS BY THE FINANCE ACT, 2 021 CANNOT BE REGARDED AS RETROSPECTIVE IN NATURE AS THEY WERE NOT IN THE NATURE OF A BENEFICIAL LEGISLATION TO REMOVE INTEND ED HARDSHIPS CAST ON THE ASSESSEE AND THEREFORE, THE DISALLOWANC E SUSTAINED ON THIS BASIS IS OPPOSED TO LAW AND FACTS OF THE APPEL LANT'S CASE. 4.2 THE LEARNED CIT[A] / NFAC IS NOT JUSTIFIED IN R EFUSING THE FOLLOW THE BINDING JUDGEMENT OF THE HON'BLE JURISDI CTIONAL HIGH COURT AND SEVERAL OTHER DECISIONS RELIED UPON IN FA VOUR OF THE ASSESSEE ON THE GROUND THAT THE SAID JUDGMENT WAS R ENDERED BEFORE THE AFORESAID CLARIFICATORY AMENDMENTS MADE UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S C ASE. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBL Y PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE C OSTS. 3. THE GRIEVANCE OF THE ASSESSEE IN THESE APPEALS IS REGARDING DISALLOWANCE TOWARDS PF & ESI CONTRIBUTION OF EMPLO YEES PAID BEYOND THE DUE DATE AS PER RELEVANT ACT, HOWEVER DEPOSITED WIT HIN THE DUE DATE OF FILING RETURN U/S. 139(1) OF THE ACT. THIS ISSUE C AME UP FOR CONSIDERATION BEFORE THIS TRIBUNAL IN THE CASE OF M/S. JANA URBAN SERVICES FOR TRANSFORMATION PVT. LTD. V. DCIT, ITA NO.308/BANG/2 021 . THE TRIBUNAL VIDE ORDER DATED 11.10.2021 HELD AS UNDER:- 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE MADE CONTRIBUTION TO THE PF AS FOLLOWS:- ITA NOS. 394 & 395/BANG/2021 PAGE 4 OF 11 7. AS SEEN FROM THE ABOVE, THE ASSESSEE MADE A SUM OF RS.19,04,700/- BEYOND THE TIME PRESCRIBED UNDER THE RELEVANT ACT. NOW THE CLAIM OF ASSESSEE IS THAT THE ABOVE PA YMENT HAS BEEN MADE TOWARDS PF BEYOND DUE DATE PRESCRIBED UND ER THE RELEVANT ACT, HOWEVER, THE SAME WAS MADE WITHIN DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT F OR THE YEAR UNDER CONSIDERATION. AS SUCH THE SAID AMOUNT CANNOT BE DISALLOWED U/S 36(1)(VA) OF THE ACT AND IT IS NOT H IT BY ITA NOS. 394 & 395/BANG/2021 PAGE 5 OF 11 EXPLANATION 2 TO SEC.36(1)(VA) OF THE ACT WHICH CAL LS FOR PAYMENT WITHIN THE DUE DATE PRESCRIBED UNDER THE RELEVANT A CT. FOR THIS PURPOSE HE RELIED ON THE JUDGMENT IN THE CASE OF ES SAE TERAOKA (P.) LTD. V. DY. CIT 366 ITR 408 (KAR.), WHEREIN IT HAS HELD AS UNDER: 15. FROM BARE PERUSAL OF THIS PROVISION, IT IS CLE AR THAT UNDER THE PROVISION, FOR IT ACT, AN EXTENSION IS GI VEN TO THE EMPLOYER TO MAKE PAYMENT OF CONTRIBUTION TO PROVIDENT FUND OR ANY OTHER FUND TILL THE 'DUE DATE ' APPLICABLE FOR FURNISHING THE RETURN OF INCOME UNDE R SUB- SECTION(1) OF SECTION 139 OF THE IT ACT IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SU M WAS INCURRED AND THE EVIDENCE OF SUCH PAYMENT IS FURNIS HED BY THE ASSESSEE ALONG WITH SUCH RETURN. IN SHORT, THIS PROVISION STATES, NOTWITHSTANDING ANYTHING CONTAINE D IN ANY OTHER PROVISION CONTAINED IN THIS ACT, A DEDUCT ION OTHERWISE ALLOWABLE IN THIS ACT IN RESPECT OF ANY S UM PAYABLE BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY FUND SUCH AS PROVIDENT FUND SHA LL BE ALLOWED IF IT IS PAID ON OR BEFORE THE DUE DATE AS CONTEMPLATED UNDER SECTION 139(1) OF THE IT ACT. TH IS PROVISION HAS NOTHING TO DO WITH THE CONSEQUENCES, PROVIDED FOR UNDER THE PF ACT/PF SCHEME/ESI ACT, FO R NOT DEPOSITING THE 'CONTRIBUTION' ON OR BEFORE THE DUE DATES THEREIN. 16. IN THE PRESENT CASE, ADMITTEDLY, THOUGH THE EMP LOYER DID NOT DEPOSIT THE CONTRIBUTION, WITHIN THE STIPUL ATED TIME, AS CONTEMPLATED BY PARAGRAPH-30 OF THE PF SCH EME OR BEFORE THE DUE DATE UNDER THE PROVISIONS OF THE PF SCHEME/ACT, HE DEPOSITED THE CONTRIBUTION TO THE PF /ESI FUND BEFORE THE DUE DATE CONTEMPLATED UNDER SECTION 139(1) OF THE ACT. 17. SECTION 6 OF THE PF ACT PROVIDES FOR CONTRIBUTI ONS AND MATTERS WHICH MAY BE PROVIDED FOR IN SCHEMES. PARAGRAPH-29 OF THE PF SCHEME STATES WHAT IS 'CONTRIBUTION'. THE EXPRESSION 'CONTRIBUTION' IS AL SO DEFINED UNDER THE PF ACT BY SECTION 2(C) OF THE PF ACT, WHICH MEANS A CONTRIBUTION PAYABLE IN RESPECT OF A MEMBER UNDER THE SCHEME OR THE CONTRIBUTION PAYABLE IN RESPECT OF AN EMPLOYEE TO WHOM THE INSURANCE SCHEME APPLIES. IF THIS DEFINITION IS READ WITH SUBPARA(1) OF PARAGRAPH-29 IN CHAPTER-V OF THE PF SCHEME, IT WOUL D ITA NOS. 394 & 395/BANG/2021 PAGE 6 OF 11 MEAN THAT THE CONTRIBUTIONS PAYABLE BY THE EMPLOYER UNDER THE SCHEME SHALL BE AT A PARTICULAR RATE AND THE CONTRIBUTION PAYABLE BY THE ASSESSEE SHALL BE EQUAL TO THE CONTRIBUTION PAYABLE BY THE EMPLOYER. 18. PARAGRAPH-30 OF THE PF SCHEME PROVIDES FOR PAYM ENT OF CONTRIBUTIONS. SUB-PARA(1) OF PARAGRAPH30 STATES THAT THE EMPLOYER SHALL, IN THE FIRST INSTANCE, PAY BOTH THE CONTRIBUTION PAYABLE BY HIMSELF (IN THIS SCHEME REF ERRED TO AS THE EMPLOYER'S CONTRIBUTION) AND ALSO, ON BEH ALF OF THE MEMBER EMPLOYED BY HIM DIRECTLY OR BY OR THROUG H A CONTRACTOR, THE CONTRIBUTION PAYABLE BY SUCH MEMBER (IN THIS SCHEME REFERRED TO AS THE MEMBER'S CONTRIBUTIO N). 19. FROM BARE PERUSAL OF SUB-PARA(1) OF PARAGRAPH-3 0, IT IS CLEAR THAT THE WORD 'CONTRIBUTION' IS USED NOT ONLY TO MEAN CONTRIBUTION OF THE EMPLOYER BUT ALSO CONTRIBU TION TO BE MADE ON BEHALF OF THE MEMBER EMPLOYED BY THE EMPLOYER DIRECTLY. 2O. PARAGRAPH-38 OF THE PF SCHEME PROVIDES FOR MODE OF PAYMENT OF CONTRIBUTIONS. AS PROVIDED IN SUBPARA(1) , THE EMPLOYER SHALL, BEFORE PAYING THE MEMBER, HIS WAGES , DEDUCT HIS CONTRIBUTION FROM HIS WAGES AND DEPOSIT THE SAME TOGETHER WITH HIS OWN CONTRIBUTION AND OTHER CHARGES AS STIPULATED THEREIN WITH THE PROVIDENT FU ND OR THE FUND UNDER THE ESI ACT WITHIN FIFTEEN DAYS OF T HE CLOSURE OF EVERY MONTH PAY. IT IS CLEAR THAT THE WO RD 'CONTRIBUTION' USED IN CLAUSE(B) OF SECTION 43B OF THE IT ACT BEANS THE CONTRIBUTION OF THE EMPLOYER AND THE EMPLOYEE. THAT BEING SO, IF THE CONTRIBUTION IS MAD E ON OR BEFORE THE DUE DATE FOR FURNISHING THE RETURN OF IN COME UNDER SUBSECTION(1) OF SECTION 139 OF THE IT ACT IS MADE, THE EMPLOYER IS ENTITLED FOR DEDUCTION. 21. THE SUBMISSION OF MR. ARAVIND, LEARNED COUNSEL FOR THE REVENUE THAT IF THE EMPLOYER FAILS TO DEDUCT THE EM PLOYEES CONTRIBUTION ON OR BEFORE THE DUE DATE, CONTEMPLATE D UNDER THE PROVISIONS OF THE PF ACT AND THE PF SCHEM E, THAT WOULD HAVE TO BE TREATED AS INCOME WITHIN THE MEANING OF SECTION 2(24)(X) OF THE IT ACT AND IN WH ICH CASE, THE ASSESSEE IS LIABLE TO PAY TAX ON THE SAID AMOUNT TREATING THAT AS HIS INCOME, DESERVES TO BE REJECTE D. ITA NOS. 394 & 395/BANG/2021 PAGE 7 OF 11 22. WITH RESPECT, WE FIND IT DIFFICULT TO ENDORSE T HE VIEW TAKEN BY THE GUJARAT HIGH COURT. WE AGREE WITH THE VIEW TAKEN BY THIS COURT IN W.A.NO.407712013. 23. IN THE RESULT, THE APPEAL IS ALLOWED AND THE SU BSTANTIAL QUESTION OF LAW FRAMED BY US IS ANSWERED IN FAVOUR OF THE APPELLANT-ASSESSEE AND AGAINST THE RESPONDENT-REVEN UE. THERE SHALL BE NO ORDER AS TO COSTS. 8. FURTHER, HE RELIED ON THE JUDGMENT OF HONBLE KA RNATAKA HIGH COURT IN THE CASE OF CIT V. SABARI ENTERPRISES [200 8] 298 ITR 141 (KAR.) HAS HELD AS UNDER: THIS CLAUSE IS INSERTED BY THE FINANCE ACT WITH EF FECT FROM APRIL 1, 1988. THE EXPLANATION TO THIS CLAUSE IS RE AD VERY CAREFULLY. 'DUE DATE' HAS BEEN EXPLAINED STATING TH AT: MEANS THE DATE BY WHICH THE ASSESSEE IS REQUIRED AS AN EMPLOYER TO CREDIT CONTRIBUTION TO THE EMPLOYEES' A CCOUNT IN THE RELEVANT FUND UNDER ANY ACT, RULE OR ORDER O R NOTIFICATION ISSUED THEREUNDER OR UNDER ANY STANDIN G ORDER, AWARD, CONTRACT OF SERVICE OR OTHERWISE.' PR IOR TO THE ABOVE CLAUSE WAS INSERTED TO SECTION 36 GIVING STATUTORY DEDUCTIONS OF PAYMENT OF TAX UNDER THE PROVISIONS OF THE ACT, SECTION 43B(B) WAS INSERTED BY THE FINANCE ACT, 1983, WHICH CAME INTO FORCE WITH EFFEC T FROM APRIL 1, 1984. THEREFORE, AGAIN THE PROVISION OF SE CTION 43B(B) CLEARLY PROVIDES THAT NOTWITHSTANDING ANYTHI NG CONTAINED IN THE OTHER PROVISIONS OF THE ACT INCLUD ING SECTION 36(L) CLAUSE (VA) OF THE ACT, EVEN PRIOR TO THE INSERTION OF THAT CLAUSE THE ASSESSEE IS ENTITLED T O GET STATUTORY BENEFIT OF DEDUCTION OF PAYMENT OF TAX FR OM THE REVENUE. IF THAT PROVISION IS READ ALONG WITH THE F IRST PROVISO OF THE SAID SECTION WHICH WAS INSERTED BY T HE FINANCE ACT, 1987, WHICH CAME INTO EFFECT FROM APRI L 1, 1988, THE LETTERS NUMBERED AS CLAUSE (A), OR CLAUSE (C) OR CLAUSE (D) OR CLAUSE (E) OR CLAUSE (F) ARE OMITTED FROM THE ABOVE PROVISO AND THEREFORE DEDUCTION TOWARDS THE EMPLOYEES CONTRIBUTION PAID CAN BE CLAIMED BY THE ASSESSEE. THE EXPLANATION TO CLAUSE (VA) OF SECTION 36(1) OF THE INCOME-TAX ACT FURTHER MAKES IT VERY CLEAR THAT THE AMOUNT ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE T HE DUE DATE APPLICABLE IN THIS CASE AT THE TIME OF SUBMITT ING RETURNS OF INCOME UNDER SECTION 139 OF THE ACT TO T HE REVENUE IN RESPECT OF THE PREVIOUS YEAR CAN BE CLAI MED BY THE ASSESSEES FOR DEDUCTION OUT OF THEIR GROSS INCO ME. THE ITA NOS. 394 & 395/BANG/2021 PAGE 8 OF 11 ABOVE SAID STATUTORY PROVISIONS OF THE INCOME-TAX A CT ABUNDANTLY MAKES IT CLEAR THAT, THE CONTENTION URGE D ON BEHALF OF THE REVENUE THAT DEDUCTION FROM OUT OF GR OSS INCOME FOR PAYMENT OF TAX AT THE TIME OF SUBMISSION OF RETURNS UNDER SECTION 139 IS PERMISSIBLE ONLY IF TH E STATUTORY LIABILITY OF PAYMENT OF PROVIDENT FUND OR OTHER CONTRIBUTION FUNDS REFERRED TO IN CLAUSE (B) ARE PA ID WITHIN THE DUE DATE UNDER THE RESPECTIVE STATUTORY ENACTME NTS BY THE ASSESSEES AS CONTENDED BY LEARNED COUNSEL FOR T HE REVENUE IS NOT TENABLE IN LAW AND THEREFORE THE SAM E CANNOT BE ACCEPTED BY US. 9. THE LD.AR DREW OUR ATTENTION TO THE DELETION OF THE SECOND PROVISO TO SECTION 43B OF THE INCOME-TAX ACT BY THE FINANCE ACT 2003, WHICH PROVISION HAS COME INTO FORCE, WITH EFF ECT FROM APRIL 1, 2004. THE RELIANCE PLACED UPON THE DECISIO N OF THE APEX COURT IN ALLIED MOTORS P. LTD. V. CIT [1997] 224 IT R 677 AND ALSO ON THE DECISION IN GENERAL FINANCE CO. V. CIT (ASST.) [2002] 257 ITR 338 (SC) IN RESPECT OF APPLICABILITY OF SEC TION 43B(B) AND ALSO OMISSION OF CLAUSE (A) OR (C) OR (D ) OR ( E) OR (B REFERRED TO ABOVE OCCURRED IN THE FIRST PROVISO TO SECTION 4 3B, SUPPORTS THE CASE OF THE ASSESSEES AND ALSO RELEVANT PARAGRAPHS EXTRACTED FROM ALLIED MOTOR'S CASE [1997] 224 ITR 677 AND PARAGRAP H 59 REFERRED TO SUPRA IN THIS JUDGMENT FROM THE FINANCE BILL WITH ALL FOURS SUPPORTS THE CASE OF THE ASSESSEE/ RESPONDENT S. THEREFORE, WE HAVE TO ANSWER THE SUBSTANTIAL QUESTION OF LAW N O. 1 FRAMED BY THIS COURT IN THESE APPEALS AT THE INSTANCE OF T HE REVENUE AGAINST THEM, VIZ., IN THE NEGATIVE. ACCORDINGLY, W E ANSWER THE SUBSTANTIAL QUESTION NO. 1 FRAMED IN THESE APPEALS IN THE NEGATIVE. 10. FURTHER HE RELIED ON THE FOLLOWING JUDGMENTS:- 1. IN RE-COGNIZANCE FOR EXTENSION OF LIMITATION - SUPREME COURT OF INDIA IN M.P NO.665/2021 IN SMW(C) NO.3/2020 DT.19/7/2021. 2. SALZGITTER HYDRAULICS PVT LTD VS ITO [2021] 128 TAXMAN.COM 192 [HYDERABAD TRIBUNAL] ITA NOS. 394 & 395/BANG/2021 PAGE 9 OF 11 3. M/S CRESCENT ROADWAYS PVT LTD VS DYCIT - ITA.NO. 1952 HYDERABAD/20 18 4. M/S MAHADEV COLD STORAGE VS JURISDICTIONAL AO - ITA.NO.41 & 42/AGRA/ 2021 5. M/S ESSAE TERAOKA (P.) LTD VS DCIT - [2014] 43 TAXMANN.COM 33 (KARNATAKA) 6. ANAND KUMAR JAIN VS ITO - ITA NO 4192/MUM/2012 VALUE MOMENTUM SOFTWARE SERVICES PRIVATE LIMITED VS. DCIT I.T.A. NO. 2 197/HYD/20 17 [ASSESSMENT YEAR: 2013-14] DATED 19.05.2021; 7. MOHAN RAM CHAUDHARY VS. ITO ITA NO. 51&54- 55/JODH/2021 [ASSESSMENT YEAR: 2018-19] DATED 28.09.2021; 8. CIT V. AIMIL LTD. [2010] 321 ITR 508 9. CIT V. NIPSO POLYFABRIKS LTD. [2013] 350 ITR 326 10. CIT VS. MERCHEM LTD. 378 ITR 443 (KERALA)) 11. SAGUN FOUNDRY (P.) LTD. VS. CIT [2017] 291 CTR 557 (ALLAHABAD) 12. BATA INDIA LTD. VS. DCIT [2020] 180 LTD 464 (KOLKATA - TRIB.) 13. DCIT VS. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD. [2016] 160 LTD 432 (VISAKHAPATNAM - TRIB. ) 14. NUZIVEDU SWATI COASTAL CONSORTIUM VS. ITO [2015 ] 62 TAXMANN.COM 258 (HYDERABAD - TRIB.) 15. DCIT VS. TEESTA VALLEY TEA CO. LTD. [2017] 85 TAXMANN.COM 301 (KOLKATA - TRIB.) 11. THE LD.DR CONTENTION IS THAT AS PER SEC.43B(B) OF THE INCOME- TAX ACT AND EXPLANATORY NOTES TO FINANCE ACT 1983, THAT EMPLOYEES CONTRIBUTION WAS NEVER INTENDED TO BE CO VERED BY SEC.43B. THIS HAS BEEN REITERATED AND REINFORCED TH ROUGH ITA NOS. 394 & 395/BANG/2021 PAGE 10 OF 11 EXPLANATION 5 TO SEC.43B AND EXPLANATION 2 TO 36(1) (VA) INSERTED BY FINANCE ACT 2021. IF IT WAS THE INTENTION OF THE LEGISLATURE EXPRESSLY MADE CLEAR IN THE FINANCE ACT 2021, THROU GH THE EXPLANATORY NOTES, IT WOULD NECESSARILY TO BE HELD THAT EXPLANATION 5 TO SEC. 43B AND EXPLANATION 2 TO SEC. 36(1)(VA) WOULD APPLY TO ALL PENDING MATTERS AS ON DATE. 12. WE FIND NO MERIT IN THE ARGUMENT OF THE LD.DR S INCE THE EXPLANATION AS PROVIDED IN FINANCE ACT 2021 PRESCRI BES THAT THE AMENDMENT IN BOTH SEC.36(VA) AS WELL AS 43B BY INSE RTING CORRESPONDING EXPLANATION THAT ALTHOUGH IMPUGNED PF COMES IN THE FORM OF PROVISION AND THE SAME IS APPLICABLE FR OM 1/4/2021 ONWARDS ONLY. IN THE PRESENT CASE WE ARE CONCERNED WITH THE ASST. YEAR 2017-18 AND THE AMENDED PROVISION COULD NOT BE APPLIED RETROSPECTIVELY AS IT IS ONLY APPLICABLE W.E.F 1/4/ 2021. BEING SO NO DISALLOWANCE COULD BE MADE BY THE AO IN RESPECT OF PF/ESI PAID WITHIN THE DUE DATE OF FILING RETURN OF INCOME . THOUGH, IT WAS BEYOND THE DATE MENTIONED IN THE RESPECTIVE ACT . THIS VIEW OF OURS IS SUPPORTED BY VARIOUS JUDGMENT RELIED ON BY THE LD.AR. ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ALLOWED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 4. TAKING A CONSISTENT VIEW AND FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL, WE ALLOW THIS GROUND TAKEN BY THE ASSESSE E AND THERE CANNOT BE ANY DISALLOWANCE BY INVOKING THE PROVISIONS OF SECT ION 36(1)(VA) R.W.S. 43B OF THE ACT. 5. IN THE RESULT, THE APPEALS BY THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF OCTOBER, 2021. SD/- SD/- ( BEENA PILLAI ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 27 TH OCTOBER, 2021. / DESAI S MURTHY / ITA NOS. 394 & 395/BANG/2021 PAGE 11 OF 11 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.