ACIT, CIRCLE-1, JAIPUR, JAIPUR V. NIRMAL KUMAR BARDIYA, JAIPUR

MA 10/JPR/2023

AI Insights

The case revolves around a Miscellaneous Application filed by the Department against an ITAT order that had favored the assessee, Shri Nirmal Kumar Bardiya, by deleting a disallowance of Rs. 3,42,412 on account of late deposit of employees' PF contributions. The Department sought rectification of the ITAT's order, citing a Supreme Court decision that allegedly contradicted the ITAT's earlier ruling. However, the ITAT dismissed the Department's application, noting that the Supreme Court's decision came after the ITAT's original order and did not constitute a mistake apparent from the record under Section 254(2) of the Income Tax Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132424 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-03-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 26-01-2023
• Other Referred Cases: M/s Checkmate Services Pvt. Ltd. vs. Commissioner of Income-tax -I, Sanjay Porwal vs CPC, Bengaluru/ITO, Ward 6(4), Jaipur, Mohangarh Engineers and Construction Company vs DCIT, CPC, CIT vs. State Bank of Bikaner & Jaipur, CIT vs. Jaipur Vidyut Vitran Nigam Ltd., CIT vs Udaipur DugdhUtpadak Sahakari Sangh Ltd., CIT vs Rajasthan State Beverages Corporation Limited, Chatru Mal Garg Vs ACIT, EssaeTeraoka Pvt. Ltd. vs. ACIT, Indian Geotechnical Services vs. ACIT, Vedvan Consultants Pvt. Ltd. vs. ACIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Retrospective amendment; Condonation of delay
• Section: 2; 43B; 139; 143(1); 192; 139(1); 254(2)

Judgement Text

vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR JhlaanhixkslkbZ]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Misc. Application No. 10/JP/2023 (Arising out of vk;djvihy la-@ITA No.260/JP/2021) fu/kZkj.ko"kZ@AssessmentYear : 2017-18 ACIT Circle-1 Jaipur cuke Vs. Shri Nirmal Kumar Bardiya 24, Bardiya Colony, Museum Road Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABAPB 9576 F vihykFkhZ@Appellant izR;FkhZ@Respondent jktLo dh vksjls@Revenue by: Shri A.S. Nehra, Addl. CIT fu/kZkfjrh dh vksjls@Assesseeby : Shri S.R. Sharma, CA & Shri R.K. Bhatra, CA lquokbZ dh rkjh[k@Date of Hearing : 15/03/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 16 /05/2023 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM The Department has filed a Miscellaneous Application against ITAT, Jaipur Bench order dated 05-05-2022 for rectification of mistake u/s 254(2) of the Income Tax Act, [ here in after as Act ] by praying therein as under:- ‘’1. The Hon'ble Tribunal, vide order dated 05/05/2022 passed in the case of Shri Nirmal Kumar Bardiya, 24, Bardiya Colony, Museum Road, Jaipur vs. ACIT, Circle -1, Jaipur (ITA No. 260/JP/2021) for assessment year 2017-18, has allowed the appeal filed by the assessee against the order of the Id. CIT(A)/NFAC dated 28/09/2021 in the matter of order passed u/s 143(1) ofthe Income Tax Act, 1961. The order of Hon'ble ITAT was reached in the office of the Pr. CIT on 30/09/2022. 2 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA 2. In ground No. 1 of the appeal filed before the Hon'ble Tribunal, the Assessee has challenged the order of Id. CIT(A) wherein disallowance made with respect to the employees contribution PF amounting to Rs to 3,42,412/- u/s 36(1)(va) r/w sec. 2(24)(x) of the Income-tax Act, 1961 were upheld. Assessee contended that ld. CIT(A) was not accepted that explanation 2 to section 36(1)(va) introduced by the Finance Act, 2021 is prospective in nature and, henceforth, disallowance confirmed by the Id. CIT(A). Consequently, the "due date" for the deposition of employee's contribution by the employer is the due date of filing ITR u/s 139(1) of the Income-tax Act. 3. The Hon'ble Tribunal has allowed the petition of the assessee by deleting the disallowance made on account of employees contribution towards PF to the tune of Rs. 3,42,412/- deposited before the due date of filing of return of income u/s 139(1) of the Act. The Id. CIT(A) has allowed the appeal of the asessee on this issue without appreciating the following facts and legal position :- (a) That, at the time of the decision taken by the Hon'ble ITAT, various inferences were available on the issue under consideration, and various Hon'ble High Courts as well as Tribunal Benches had taken different views in the matter. Considering the ambiguity in the matter, the issue had been taken up by the Hon'ble Supreme Court for the proper administration of justice in the matter. While deciding the present issue, Hon'ble Supreme Court has expressed its clear mandate and intention in its order in the case of M/s Checkmate Services Pvt. Ltd. vs. Commissioner of Income-tax -I in Civil Appeal No. 2833/2016. The Hon'ble Apex Court has confirmed the order of the Hon'ble Gujrat High court on the issue of disallowance u/s 36(1)(iv) & 36(1)(va) vis-à-vis 43B read with section 2(24)(x) of the Income-tax Act. In the said order, Hon'ble Supreme Court held that "due date" with respect to the employee's contribution meant the date by which the assessee, as an employer, had to credit the employee's contribution to the employee's account in the relevant fund under any law or rule or regulation issued thereunder or under any standing order, etc. [that is, EPF/ESI laws and regulations]. From the order passed by the Hon'ble Tribunal, it is noticed that it had deleted the disallowance made on account of considering the "due date" for deposition of employee's contribution by the employer before the due date u/s 139(1). The contention take by the Hon'ble Tribunal is opposite to the mandate accepted by the Hon'ble Supreme Court in the matter. It is established position of jurisprudence that a classification by Hon'ble Supreme Court is always retrospective. PRAYER In view of the facts of the case and under consideration of the legal precedent established in the Civil Appeal No. 2833/2016 in the case of M/s Checkmate Services Pvt. Ltd. by the Hon'ble Supreme Court, as detailed above, the Hon'ble Tribunal is requested to consider the Miscellaneous Application u/s 254 of the Income-tax Act, 1961 and pass 3 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA appropriate order after considering the precedent established in the Civil Appeal No. 2833/2016 in the case of M/s Checkmate Services Pvt. Ltd. by the Hon'ble Supreme Court. The mandatory precedent established in the Civil Appeal No. 2833/2016 in the case of M/s Checkmate Services Pvt. Ltd. by the Hon'ble Supreme Court may please be considered for purposes of adjudication.’’ 2.1 At the outset of the hearing, the Bench noted that there is delay of 57 days in filing the Misc. Application by the Department for which the Department has filed an application for condonation of delay by apprising the reason as under:- 1. Excess work load related to time barring matters. 2. Regular hearing related to settlement cases during the stipulated period. 2.2 On the other hand, the ld. AR of the assessee objected to such delay of 57 days in filing the Misc. Application by the Department and submitted that the M.A. is filed on 23-01-2023 by the Department i.e. after the 8 months of order passed in assessee’s case. It is further submitted that as per the provisions of Section 254(2) of the I.T. Act, the Hon’ble Bench may amend the order within a period of six months from the end of the month in which the order is passed and the time limit to file the M.A. expired on 30 th Nov. 2022. Thus the M.A. filed by the department is time barred. 2.3 After hearing both the parties and perusing the materials available on record, the Bench noted that there is force in the submissions of the ld. AR of the assessee. Hence, the Bench does not find sufficient cause whereby the Department was 4 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA prevented in late filing the Misc. Application. Thus the application for condonation of delay made by the Department is dismissed. 3.1 As regards the decision taken by the ITAT Bench vide its order dated 05-05- 2022 in the case of the assessee with regard to the addition of Rs.3,42,412/- made by the AO on account of late deposit of employees PF by the assessee which was confirmed by the ld. CIT(A), NFAC, Delhi and subsequently the Bench deleted the disallowance confirmed by the ld. CIT(A) vide its order dated 05-05-2022by observing as under:- ‘’4.7 We have heard both the parties and perused the materials available on record. The Bench noted during the course of hearing that the AO made an addition of Rs.3,42,412/- on account of late deposit of employees PF by the assessee. However, the assessee deposited the employees PF contribution before due date of filing of return of income u/s 139 of the Act. It is further observed that the ld. CIT(A) has confirmed the action of the AO holding that the sum of Rs.3,42,412/- being employees contribution to PF has been paid late under that Act and thus the addition made by the AO deserves to be upheld. The Bench has taken into consideration its various orders wherein similar issue has been decided in favour of the assessee on the issue in question. Recently, the similar issue of late deposit of employees PF/ESI contribution by the assessee but paid the same before due date of filing of return of income in the case of Sanjay Porwal vs CPC, Bengaluru/ITO, Ward 6(4), Jaipur (ITA NO.63/JP/2022) vide order dated 06-04-2022 has been disposed off by observing as under:- ‘’4.7. We have considered the rival submissions as well as the relevant material on record. There is no dispute that prior to the amendment brought by the Finance Bill, 2021 in Section 36(1)(va) as well as Section 43B of the Act, the issue of allowability of employees contribution towards PF and ESI and depositing the same in the government account before the due date of filing of return of income U/s 139(1) of the Act was settled and decided in 5 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA favour of the assessee by various binding precedents of Hon’ble High Courts including the Jurisdictional High Court. The limited controversy is whether the amendment brought to Section 36(1)(va) as well as 43B of the Act is applicable retrospective or from assessment year 2021-22 as it is specifically stated in the memorandum of Finance Bill, 2021. At the outset, it is noted that the Coordinate Bench of this Tribunal in the case of M/s Kogta Financial (India) Ltd. Vs CPC (supra) has considered this issue in para 5 to 7 as under: “5. We have heard the rival contentions and perused the material available on record. In case of Mohangarh Engineers and Construction Company vs DCIT, CPC (Supra), speaking through one of us, we have extensively dealt with the identical matter relating to employee’s contribution towards ESI/PF and our findings therein read as under:- “13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees’s contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees’s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act. 14. The issue is no more res integra in light of series of decisions rendered by the Hon’ble Rajasthan High Court starting from CIT vs. State Bank of Bikaner & Jaipur (supra) and subsequent decisions. 15. In this regard, we may refer to the initial decision of Hon’ble Rajasthan High Court in case of CIT vs. State Bank of Bikaner & Jaipur wherein the Hon’ble High Court after extensively examining the matter and considering the various decisions of the Hon’ble Supreme Court and various other High Courts has decided the matter in favour of the assessee. In the said decision, the Hon’ble High Court was pleased to held as under: “20. On perusal of Sec.36(1)(va) and Sec.43(B)(b) and analyzing the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in 6 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause & would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under Section 139 is permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act.” 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur DugdhUtpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corporation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon’ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon’ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon’ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional 7 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs 4,38,530/- so made by the CPC towards the delayed deposit of the employees’s contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon’ble Rajasthan High Court.” 6. In the instant case, admittedly and undisputedly, the employees’ contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, the ld D/R has referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, I find that there are express wordings in the said memorandum which says “these amendments will take effect from 1 st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years”. In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- “7. The Hon'ble Karnataka High Court in the case of EssaeTeraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction having been made, the said provision was brought in to curb the said activities and which was approved by the Hon’ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation appended to Section 36(1)(va) of the Act further envisage that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under Section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that Sec.43B starts with a notwithstanding clause & would thus override Sec.36(1) (va) and if read in isolation Sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the 8 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA gross income for payment of tax at the time of submission of return under Section 139 is permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-section (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Section 36(1)(va) of the IT Act.” 16. The said decision has subsequently been followed in CIT vs. Jaipur Vidyut Vitran Nigam Ltd. (supra), CIT vs. Udaipur DugdhUtpadak Sahakari Sangh Ltd. (supra), and CIT vs Rajasthan State Beverages Corporation Limited (supra). In all these decisions, it has been consistently held that where the PF and ESI dues are paid after the due date under the respective statues but before filing of the return of income under section 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon’ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon’ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon’ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs 4,38,530/- so made by the CPC towards the delayed deposit of the employees’s contribution towards ESI and PF though paid well before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted as the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act in view of the binding decisions of the Hon’ble Rajasthan High Court.” 6. In the instant case, admittedly and undisputedly, the employees’ contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) of the Act. Further, the ld D/R has 9 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, I find that there are express wordings in the said memorandum which says “these amendments will take effect from 1 st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years”. In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- “7. The Hon'ble Karnataka High Court in the case of EssaeTeraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction.. Therefore, the issue is covered by the decision of the Hon'ble Karnataka High Court. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also. On this aspect, we find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted.” 7. In light of the aforesaid discussions and in the entirety of facts and circumstances of the case and following the consistent decisions taken by the various Benches of the Tribunal, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to Rs. 37,62,586/- so made by the CPC towards the deposit of the employees’s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted.” Thus, it is clear from the above cited decision that this Tribunal has considered various decisions on this issue and by following decisions of the Coordinate Benches of the Tribunal, this issue was decided in favour of the assessee by holding that amendment in Section 36(1)(va) as well as Section 43B of the Act by way of inserting the explanation vide Finance Bill, 2021 are applicable only from A.Y. 2021-22 and subsequent assessment years and 10 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA therefore, the said amendment is not applicable to the assessment year under consideration. 4.8. Similar view has been taken by the Delhi Benches of the Tribunal in the case of Chatru Mal Garg Vs ACIT (supra) in para 7 as under: “7. I have heard the rival submissions and perused the materials on record. The issue in the present ground is with respect to disallowance under section 36(1)(va) of the Act. It is an undisputed fact that there has been slight delay in the deposit of employees’ contribution of PF and ESI by the assessee and the contribution have been deposited beyond the due date prescribed by the relevant authorities but at the same time it is also a fact that the amounts have been deposited with the appropriate authorities by the assessee before filing the return of income for the relevant assessment year. I find that Hon’ble Delhi High Court in the case of CIT vs. AIMIL Ltd. (supra) has held that no disallowance under section 36(1)(va) of the Act is called for when the amounts are deposited before filing the return of income. Similar view has also been taken by the Hon’ble Punjab & Haryana High Court in the case of CIT vs. Hemla Embroidery Mills (P) Ltd (supra) and Indian Geotechnical Services (supra). As far as the applicability of amendment made by Finance Act 2021 is concerned, I find that the Co-ordinate Bench of Tribunal in the case of Indian Geotechnical Services (supra) has held that amendment made by Finance Bill 2021 shall take effect from 1st April 2021 and will accordingly apply to A.Y. 2021-11 and subsequent years. In the present case assessment year involved is 2018-19 and therefore following the aforesaid decision in thecase of Indian Geotechnical Services (supra), I am of the view that the amended provisions would have no application to the case under consideration. Before me, Learned DR has relied on the decision of Co-ordinate Bench of Tribunal in the case of Vedvan Consultants Pvt. Ltd. (supra). It is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon’ble Supreme Court. I therefore following the decision of High Courts cited hereinabove and the decision of the Co-ordinate Bench of Tribunal, I am of the view that no addition u/s 36(1)(va) of the Act is called for in the present case. Therefore I direct the AO to delete the addition. Thus the ground of assessee is allowed.’’ Thus, it is clear that the Delhi Benches of the Tribunal has considered the earlier decision of the Tribunal in the case of Vadvan Consultants Pvt. Ltd. (supra) which was relied upon by the ld. CIT(A) as well as the ld. DR and the issue was decided by following the decisions of Hon’ble Delhi High Court and Hon’ble Punjab & Haryana High Court and the decisions of the Division Bench of the Delhi Tribunal in the case of Indian Geotechnical Services in ITA No. 622/Del/2018 order dated 27/08/2021. Accordingly, in view of the above discussions as well as following the decisions of the Coordinate Benches of the Tribunal, this issue is decided in favour of the assessee and consequently, the disallowance made on account of employees contribution 11 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA towards PF & ESIC deposited before due date of filing of return of income U/s 139(1) of the Act amounting to Rs. 2,90,435/- is deleted. 5.0. In the result, the appeal of the assessee is allowed.’’ 4.8 Respectfully following the order of this Bench in the case of Sanjay Porwal vs CPC Bengaluru/ITO, Ward 6(4), Jaipur (supra), the disallowance made on account of employees contribution towards PF deposited before due date of filing of return of income u/s 139(1) of the Act amounting to Rs. Rs.3,42,412/- is deleted. Thus, the appeal of the assessee for the assessment year 2017-18 is allowed.’’ 3.2 It may be noteworthy to mention the view point of the Department as narrated in its letter dated 21-02-2023 as under:- ‘’Here it is pertinent to mention that as per section 254(2) of the Income Tax 1961, the Appellate Tribunal may, at any time within ‘’six months from the end of the month in which the order was passed’’, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment if the mistake is brought to its notice by the assessee or as the Assessing Officer.’’ 3.3 It is also noted from the written submission of the ld. AR of the assessee wherein he enunciated that there is no apparent mistake in the order of the Tribunal and the submission of the ld. AR is placed as under:- ‘’2. It is submitted that Hon’ble Bench passed the order in the appellant’s case after considering the prevailing interpretation of law by various Hon’ble High Courts and Hon’ble ITAT Benches across the country. The Hon’ble Apex Court order is dated 22-10- 2022 i.e after five and half month later than the order passed by the Hon’ble Bench. Thus, there is no error in the order passed by the Hon’ble Bench as per provisions of Section 254 of the I.T. Act, 1961 as the subsequent order passed by Hon’ble Supereme Court after the order of Hon’ble Tribunal does not make a mistake apparent from record. In view of the above facts, the appellant’s case does not come within the ambit of provisions of Section 254 (2) of the I.T. Act, 1961.’’ 3.4 We have heard both the parties and perused the materials available on record including the judgement passed by Hon’ble Supreme Court dated 22-10-2022 in 12 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA the case of M/s. Checkmate Services Pvt. Ltd. vs CIT-1 in Civil Appeal No. 2833/2016. The question arises as to whether there is an apparent mistake in the order of the Tribunal passed by it in the case of the assessee vide its order dated 05-05-2022. Section 254(2) empowers the Tribunal to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment, if the mistake is brought to its notices by the assessee or the Assessing Officer. The Bench also noted that the Department has simply relied upon the Judgement of Hon’ble Supreme Court in Civil Appeal No. 2833/2016 in the case of M/s. Checkmate Services Pvt. Ltd. (supra) but it has not mentioned that there is apparent mistake in the order of the ITAT passed in the case of Nirmal Kumar Bardiya (ITA No. 260/JP/2021, A.Y. 2017-18) dated 5-05-2022 wherein some amendment/ rectification is required. The order was passed by the Bench in the case of the assessee on 05-05-2022 in accordance with that time, situation and prevailing interpretation of law by various Hon’ble High Courts [ including binding judgment of jurisdictional High Court ] and ITAT Benches across the country wherein the Bench does not find any infirmity or apparent mistake. In such a situation, the Bench feels hesitation to concur with the submission of the Department to amend its order. Hence, the Misc. Application filed by the Department is dismissed. 13 M.A. NO. 10/JP/2023 ACIT, CIRCLE-1, JAIPUR VS NIRMAL KUMAR BARDIYA 4.0 In the result, the Misc. Application filed by the Department is dismissed. Order pronounced in the open court on 16 /05/2023 Sd/- Sd/- ¼lanhixkslkbZ ½ ¼jkBksMdeys'kt;UrHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 16 /05/2023 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- The ACIT, CIRCLE -1, Jaipur 2. izR;FkhZ@ The Respondent- Shri Nirmal Kumar Bardiya, Jaipur 3. vk;djvk;qDr@ The ld CIT 5. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZQkbZy@ Guard File (MA No. 10/JP/2023) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar