Appeal Details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 7982 (ITAT-CHANDIGARH)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-08-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2019-2020
Appeal Filed On
11-05-2021
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A, CHANDIGARH BEFORE: SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI R.L. NEGI, JUDICIAL MEMBER . / ITA NO.83/CHD/2021 / ASSESSMENT YEAR : 2019-20 M/S JUPITER AQUA LINES PVT. LTD., D-192, PHASE-VIII-B, INDUSTRIAL AREA, MOHALI. THE D.C.I.T. , CIRCLE-6(1), MOHALI. ./ PAN NO: AAACJ3530F /APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADV. # ! / REVENUE BY : SMT.MEENAKSHI VOHRA, ADDL.CIT-DR ! & /DATE OF HEARING : 01.07.2021 ! & /DATE OF PRONOUNCEMENT: .08. 2021 (HEARING THROUGH WEBEX) /ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER : THE ABOVE APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS), NFAC, DELHI [IN SHORT THE LD.CIT(A)] DATED 25.04.2021 RELATING TO ASSESSMENT YEARS 2019-20, PA SSED, U/S 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS ACT) ITA NO.83/CHD/2021 A.Y. 2019-20 PAGE 2 OF 5 2. THE SOLITARY ISSUE IN THE PRESENT APPEAL RELATES TO ADJUSTMENT MADE TO THE RETURN OF INCOME FILED BY TH E ASSESSEE IN THE INTIMATION U/S 143(1) OF THE ACT BY ADDING A SUM OF RS.7,42,749/- ON ACCOUNT OF FAILURE OF THE ASSESSEE TO DEPOSIT THE EMPLOYEES CONTRIBUTION TO PF/ESI FOR HAVING NO T PAID THE SAME ON OR BEFORE THE PRESCRIBED DUE DATES AS PER S ECTION U/S 36(1)(VA) OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES. THE FACTS WHICH ARE NOT DISPUTED IN THE PRESENT CASE ARE THAT THE ADDITION HAD BEEN MADE IN THE INTIMATION MADE TO THE ASSESSEE U/S 143 (1) OF THE ACT. THE EMPLOYEES CONTRIBUTION TO ESI AND PF THOU GH NOT PAID WITHIN THE DUE DATES PRESCRIBED UNDER THE RESP ECTIVE ACTS, HAD BEEN PAID WELL BEFORE THE DUE DATE OF FIL ING OF RETURN OF INCOME U/S 139(1) OF THE ACT. THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN VARIOUS CASES HAD INTE RPRETED THE PROVISIONS OF SECTION 36(1)(VA) OF THE ACT TO HOLD THAT THE EMPLOYEES CONTRIBUTION TO ESI AND PF PAID BEFORE T HE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF TH E ACT WAS ALLOWABLE AS DEDUCTION. THERE IS NO DISPUTE VIS--V IS THE AFORESAID. THE REVENUE AUTHORITIES BELOW HAVE MADE THE IMPUGNED ADJUSTMENT ON THE BASIS OF AMENDMENT TO SE CTION 36(1)(VA) AND SECTION 43B OF THE ACT, WHICH DEALS W ITH THE ALLOWABILITY OF THE EMPLOYEES AND EMPLOYERS CONTRI BUTION ITA NO.83/CHD/2021 A.Y. 2019-20 PAGE 3 OF 5 RESPECTIVELY TO ESI AND PF, EFFECTED BY FINANCE ACT , 2021 TO THE EFFECT THAT THE DUE DATE FOR PAYMENT OF EMPLOYE RS CONTRIBUTION PRESCRIBED U/S 43B OF THE ACT BEFORE T HE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT , WOULD NOT APPLY TO THE ALLOWABILITY OF EMPLOYEES CONTRIBUTION AS PER SECTION 36(1)(VA) OF THE ACT. THAT FOR ALLOWABILITY OF EMPLOYEES CONTRIBUTION TO ESI AND PF U/S 36(1)(VA) OF THE AC T, THE SAME IS TO BE PAID BY THE DUE DATE SPECIFIED IN THE RESP ECTIVE ACTS. THAT THE IMPUGNED ASSESSMENT YEAR BEFORE US IS WELL BEFORE THE AMENDMENT WAS BROUGHT ON THE STATUTE I.E. ASSES SMENT YEAR 2019-20. THE REVENUE HAS CONTENDED THAT THE AMENDMENT IS CLARIFICATORY AND HENCE, RETROSPECTIVE IN OPERATION. 4. WE FIND THAT THIS ISSUE HAS ALREADY BEEN DECID ED BY ITAT, DELHI BENCH, IN THE CASE OF INSTA EXHIBITION PVT. LTD VS. ADDL.CIT IN ITA NO.6941/DEL/2017, DATED 03.08.2021, AND THE ITAT, HYDERABAD BENCH IN THE CASE OF CRESCENT ROADW AYS PVT. LTD; VS. DCIT IN ITA NO.1952/HYD/2018, DATED 01.07. 2021 HOLDING THAT THE AMENDMENT TO SECTION 36(1)(VA) A ND U/S 43B OF THE ACT EFFECTED BY THE FINANCE ACT 2021 IS APP LICABLE PROSPECTIVELY ,READING FROM THE NOTES ON CLAUSES AT THE TIME OF INTRODUCTION OF THE FINANCE ACT, 2021, SPECIFICALLY STATING THE AMENDMENT BEING APPLICABLE IN RELATION TO ASSESSMEN T YEAR ITA NO.83/CHD/2021 A.Y. 2019-20 PAGE 4 OF 5 2021-22 AND SUBSEQUENT YEARS. THEREFORE THE ADDITI ON, WE HOLD, CANNOT BE MADE ON THE STRENGTH OF THE AMENDME NT EFFECTED BY FINANCE ACT 2021 TO SECTION 36(1)(VA)/4 3B OF THE ACT. MOREOVER IT IS AN ADMITTED POSITION THAT THE J URISDICTIONAL HIGH COURT HAS IN VARIOUS DECISIONS HELD THAT EMPLO YEES CONTRIBUTION TO ESI & PF IS ALLOWABLE IF PAID BY TH E DUE DATE OF FILING RETURN OF INCOME U/S 139(1) OF THE ACT. THE JURISDICTIONAL HIGH COURT HAS HELD SO IN THE FOLLOW ING CASES: 1) CIT VS. NUCHEM LIMITED, ITA NO.323 OF 2009 2) CIT VS. HEMLA EMBROIDERY MILLS PVT. LTD.(2014), 366 ITR 167 5. IN VIEW OF THE ABOVE, WE HOLD THAT THE CLAIM OF EMPLOYEES CONTRIBUTION TO ESI AND PF AS PER SECTION 36(1)(VA) OF THE ACT CANNOT BE DENIED IN THE IMPUGNED YEAR, I.E. 2019-20 ON THE BASIS OF AMENDMENT MADE TO THE SECTION BY FINANCE A CT 2021. THE ORDER OF THE LD.CIT(A) UPHOLDING THE SAID DISAL LOWANCE TO THE TUNE OF RS. 7,42,749/- IS THEREFORE SET ASIDE AND THE AO IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE.. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON 27 TH AUGUST, 2021. SD/- SD/- (R.L. NEGI) (ANNAPURNA GUPTA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER DATED: 27 TH AUGUST, 2021 * * ITA NO.83/CHD/2021 A.Y. 2019-20 PAGE 5 OF 5 (+! ,-.- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , &2 , 34516 / DR, ITAT, CHANDIGARH 6. 157% / GUARD FILE (+ $ / BY ORDER, / ASSISTANT REGISTRAR
Mehul