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Income Tax Appellate Tribunal, MUMBAI BENCH “E” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
This appeal by the assessee is directed against order dated 17.12.2021 passed by the Ld. Commissioner of Income-tax (Appeals) Pune-11 [in short ‘the Ld. CIT(A)’] for assessment year 2019-2020. This appeal was originally heard on 18.05.2022 and pronounced on 25.05.2022. But however, on a Miscellaneous Application filed by the Revenue, the Tribunal by way of order dated 03.03.2023 in Miscellaneous Application No. 4/Mum/2023 has recalled the order of the Tribunal dated 25.05.2022, hence this recalled the order of the Tribunal dated 25.05.2022 recalled the order of the Tribunal dated 25.05.2022 appeal came before us for hearing and adjudication. before us for hearing and adjudication.
The grounds raised by the assessee in the appeal are The grounds raised by the assessee in the appeal are The grounds raised by the assessee in the appeal are reproduced as under: reproduced as under:
In the circumstances and facts of our case, the the circumstances and facts of our case, the the circumstances and facts of our case, the Learned Commissioner of Income Tax (Appeals) has Learned Commissioner of Income Tax (Appeals) has Learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the action of erred in law and on facts in confirming the action of erred in law and on facts in confirming the action of Ld. DCIT, CPC in upholding disallowance of Rs. Ld. DCIT, CPC in upholding disallowance of Rs. Ld. DCIT, CPC in upholding disallowance of Rs. 15,21,814/ 15,21,814/- w/s 36(1)(va) in respect of employee's w/s 36(1)(va) in respect of employee's contributi contribution to Provident Fund of Rs. 5,47,809/ on to Provident Fund of Rs. 5,47,809/- and employee's contribution to superannuation fund of Rs. employee's contribution to superannuation fund of Rs. employee's contribution to superannuation fund of Rs. 9,74,005/ 9,74,005/-which has been paid before the prescribed which has been paid before the prescribed due date of furnishing the Return of Income and not due date of furnishing the Return of Income and not due date of furnishing the Return of Income and not considering the conclusive evidence submitted in its considering the conclusive evidence submitted in its considering the conclusive evidence submitted in its written submission along with supporting paper book. itten submission along with supporting paper book. itten submission along with supporting paper book.
2. In the circumstances and facts of our case, the In the circumstances and facts of our case, the In the circumstances and facts of our case, the Learned Commissioner of Income Tax (Appeals) has Learned Commissioner of Income Tax (Appeals) has Learned Commissioner of Income Tax (Appeals) has erred in law and on facts in disregarding the erred in law and on facts in disregarding the erred in law and on facts in disregarding the decisions of jurisdictional Courts which is binding decisions of jurisdictional Courts which is binding decisions of jurisdictional Courts which is binding upon him a upon him and without observing the principles of nd without observing the principles of natural justice and without appreciating the facts and natural justice and without appreciating the facts and natural justice and without appreciating the facts and circumstances of the case. circumstances of the case. 3. Without prejudice to the above grounds of appeal
, in Without prejudice to the above grounds of appeal, in Without prejudice to the above grounds of appeal, in the circumstances and facts of our case, the Learned the circumstances and facts of our case, the Learned the circumstances and facts of our case, the Learned Commissioner of Income Tax (A Commissioner of Income Tax (Appeals) has erred to ppeals) has erred to rely on amendment to Finance Act, 2021 and rely on amendment to Finance Act, 2021 and rely on amendment to Finance Act, 2021 and considering the same to apply retrospectively which considering the same to apply retrospectively which considering the same to apply retrospectively which is in direct contravention of the law since the is in direct contravention of the law since the is in direct contravention of the law since the amendment to section 36(1)(va) and section 43B are amendment to section 36(1)(va) and section 43B are amendment to section 36(1)(va) and section 43B are applicable w.e.f. 01/04/2021 and the Learned applicable w.e.f. 01/04/2021 and the Lear applicable w.e.f. 01/04/2021 and the Lear Commissioner of Income Tax (Appeals), NFAC has Commissioner of Income Tax (Appeals), NFAC has Commissioner of Income Tax (Appeals), NFAC has erred not to consider the insertion of explanation to erred not to consider the insertion of explanation to erred not to consider the insertion of explanation to section 36(1)(va) and section 43B under Finance Act, section 36(1)(va) and section 43B under Finance Act, section 36(1)(va) and section 43B under Finance Act, 2021 as clarificatory in nature and the law to be 2021 as clarificatory in nature and the law to be 2021 as clarificatory in nature and the law to be applied prospectively. applied prospectively.
3. Before us, the Ld. Cou Before us, the Ld. Counsel of the assessee referred to the nsel of the assessee referred to the Paper Book page 51 which is part of the tax audit report filed by the Paper Book page 51 which is part of the tax audit report filed by the Paper Book page 51 which is part of the tax audit report filed by the assessee. The Ld. Counsel referred to entries No. 37 to 48 of row assessee. The Ld. Counsel referred to entries No. 37 to 48 of row assessee. The Ld. Counsel referred to entries No. 37 to 48 of row No. 20(B) and submitted that auditor has pointed out payment No. 20(B) and submitted that auditor has pointed out payment No. 20(B) and submitted that auditor has pointed out payment made beyond due date u made beyond due date u/s 36(1)(va) of the Income-tax tax Act, 1961( in short ‘the Act’) amounting to Rs.15,28,814/ amounting to Rs.15,28,814/-. The Ld. Counsel . The Ld. Counsel submitted that out of said amount Rs.9,74,005/- relates to submitted that out of said amount Rs.9,74,005/ submitted that out of said amount Rs.9,74,005/ employers contribution to employers contribution to superannuation fund and therefore, same superannuation fund and therefore, same is not falling under th is not falling under the provisions of section 36(1)(va) of the Act. The (va) of the Act. The Ld. Counsel of Ld. Ld. Counsel of Counsel of the the the assessee assessee assessee filed a complete details filed a filed a complete details complete details of of of superannuation superannuation superannuation fund fund fund scheme, scheme, scheme, contribution contribution contribution made made made for for for superannuation fund for the year under consideration, the pay slip superannuation fund for the year under consideration superannuation fund for the year under consideration of the employees supporting that superannuation fund contribution supporting that superannuation fund contribution supporting that superannuation fund contribution was not part of the employee’s employee’s contribution. All such evidence ll such evidences are placed on paper book page No. 3 to 21. placed on paper book page No. 3 to 21. Regarding contribution to Regarding contribution to provident fund, the assessee did not dispute the taxability u/s the assessee did not dispute the taxability u/s the assessee did not dispute the taxability u/s 36(1)(va) of the Act.
We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. relevant material on record. The only disallowance disputed before The only disallowance disputed before us in in respect of contribution to superannuation fund. The us in in respect of contribution to superannuation fund. The us in in respect of contribution to superannuation fund. The taxability of deposit under provident fund has no taxability of deposit under provident fund has not been disputed t been disputed before us. The Ld. Counsel of the assessee has filed documentary he Ld. Counsel of the assessee has filed documentary he Ld. Counsel of the assessee has filed documentary evidence as additional evidence as additional evidencein support of claim that contribution in support of claim that contribution to superannuation fund was in the nature of employer’s to superannuation fund was in the nature of employer to superannuation fund was in the nature of employer contribution and not employee contribution and not employee’s contribution. Those se evidencesgoes to the root of taxability of amount under section 36(1)(v) of the Act. to the root of taxability of amount under section 36(1)(v) of the Act. to the root of taxability of amount under section 36(1)(v) of the Act.
Therefore, in view of the evidence view of the evidences submitted by the Ld. Counsel of submitted by the Ld. Counsel of the assessee, we feel it appropriate to restore th feel it appropriate to restore the issue of taxability e issue of taxability of deposit of superannuation of deposit of superannuation fund to the file of the Assessing Officer the file of the Assessing Officer as same required detailed verification at the end of the AO whether as same required detailed verification at the end of the AO whether as same required detailed verification at the end of the AO whether the contribution for for superannuation fund relates to employer superannuation fund relates to employer’s contribution or employee contribution or employee’s contribution. If on verification the s contribution. If on verification the Assessing Officer find that the contribution to superannuation fund nd that the contribution to superannuation fund nd that the contribution to superannuation fund is only employer’s contribution contribution, then no addition u/s 36(1)(va) of then no addition u/s 36(1)(va) of the Act is required in the case of the assessee. the Act is required in the case of the assessee. The order of the Ld. The order of the Ld. CIT(A) on the issue in dispute is accordingly set aside and matter is CIT(A) on the issue in dispute is accordingly set aside and matter is CIT(A) on the issue in dispute is accordingly set aside and matter is restored back to the file of the Assessing Officer for deciding in estored back to the file of the Assessing Officer for deciding in estored back to the file of the Assessing Officer for deciding in accordance with law and after a detailed verification of the accordance with law and after a detailed verification of the accordance with law and after a detailed verification of the documentary evidence and documentary evidence and after carrying out any inquiries if carrying out any inquiries if deemed if in the circumstances. The ground deemed if in the circumstances. The grounds of appeal are accordingly partly allowed for statistical purposes. allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed In the result, the appeal filed by the assessee is allowed In the result, the appeal filed by the assessee is allowed partly for statistical purposes. for statistical purposes. Order pronounced in the open Court on nounced in the open Court on 31/05/2023. /05/2023. Sd/ Sd/- Sd/- (KAVITHA RAJAGOPAL KAVITHA RAJAGOPAL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT Mumbai; Dated: 31/05/2023 Rahul Sharma, Sr. P.S.