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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI AMIT SHUKLA & SHRI OM PRAKASH KANT
respectively. As common grounds of appeal . As common grounds of appeal have been raised in these appeals, therefore same these appeals, therefore same were heard together and were heard together and disposed off by way this consolidated order for convenience. by way this consolidated order for convenience.
2. The grounds raised by the assessee in assessment year 2018- The grounds raised by the assessee in assessment year 2018 The grounds raised by the assessee in assessment year 2018 19 are reproduced as under: 19 are reproduced as under:
1. On the facts and in the circumstances of the case and in law, On the facts and in the circumstances of the case and in law, On the facts and in the circumstances of the case and in law, the Commissioner the Commissioner (Appeals) erred in disallowing the (Appeals) erred in disallowing the employees' employees' contribution contribution Rs. Rs. 11,58,655/- 11,58,655/ employers' contributions to Provident Fund Rs. 11,58,655/- and PF contributions to Provident Fund Rs. 11,58,655/ contributions to Provident Fund Rs. 11,58,655/ administration charges Rs. 1,11,145/ administration charges Rs. 1,11,145/- aggregating to Rs. aggregating to Rs. 24,28,455/ 24,28,455/- u/s. 36(1)(va) of the I.T. Act, 1961.
2. On the f On the facts and in the circumstances of the case and in law, acts and in the circumstances of the case and in law, the Commissioner (Appeals), without considering the facts on the Commissioner (Appeals), without considering the facts on the Commissioner (Appeals), without considering the facts on record and submissions filed, erred in confirming the record and submissions filed, erred in confirming the record and submissions filed, erred in confirming the disallowance of Rs. 11,58,655/ disallowance of Rs. 11,58,655/- u/s. 36(1)(va) of the I.T. Act, u/s. 36(1)(va) of the I.T. Act, 1961 being the employer 1961 being the employers' contribution to Provident Fund s' contribution to Provident Fund though the appellant company had deposited employers' though the appellant company had deposited employers' though the appellant company had deposited employers' contribution to Provident Fund before the due date of filing contribution to Provident Fund before the due date of filing contribution to Provident Fund before the due date of filing the return of income and hence allowable u/s. 43B of the I.T. the return of income and hence allowable u/s. 43B of the I.T. the return of income and hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do not apply to Act, 1961. Section 36(1)(va) of the Act do no Act, 1961. Section 36(1)(va) of the Act do no employers' contribution to Provident Fund. employers' contribution to Provident Fund. 3. On the facts and in the circumstances of the case and in law, On the facts and in the circumstances of the case and in law, On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition the Commissioner (Appeals) erred in confirming the addition the Commissioner (Appeals) erred in confirming the addition of Rs. 11,58,655/ of Rs. 11,58,655/- u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act, u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act,
Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 3 & 1707/M/2022 ITA Nos. 1708 & 1961, to the 1961, to the income of the appellant company being the income of the appellant company being the employees' contribution to Provident Fund. employees' contribution to Provident Fund.
4. On the facts and in the circumstances of the case and in law, On the facts and in the circumstances of the case and in law, On the facts and in the circumstances of the case and in law, the Commissioner (Appeals) erred in confirming the addition the Commissioner (Appeals) erred in confirming the addition the Commissioner (Appeals) erred in confirming the addition of Rs. 1,11,145/ of Rs. 1,11,145/- u/s. 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act, of the I.T. Act, 1961, to the income of the appellant company being Provident 1961, to the income of the appellant company being Provident 1961, to the income of the appellant company being Provident fund administration & other charges though the appellant fund administration & other charges though the appellant fund administration & other charges though the appellant company had deposited Provident fund administration & company had deposited Provident fund administration & company had deposited Provident fund administration & other charges before the due date of filing the return of other charges before the due date of filing the return of other charges before the due date of filing the return of income an income and hence allowable u/s. 43B of the I.T. Act, 1961. d hence allowable u/s. 43B of the I.T. Act, 1961. Section 36(1)(va) of the Act do not apply to Provident fund Section 36(1)(va) of the Act do not apply to Provident fund Section 36(1)(va) of the Act do not apply to Provident fund administration & other charges. administration & other charges.
The Commissioner (Appeals) erred in not following the The Commissioner (Appeals) erred in not following the The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. binding decision of the Supreme Court in the case of CIT v. binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Bombay High Court in the case of CIT v. Ghatge Patil Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR 749, Bom.) wherein it was held that Transports Ltd. (368 ITR 749, Bom.) wherein it was held that Transports Ltd. (368 ITR 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before employees' contribution to Provident Fund deposited before employees' contribution to Provident Fund deposited before the due date for filing the the due date for filing the return of income of the appellant return of income of the appellant company cannot be disallowed and added to the income of the company cannot be disallowed and added to the income of the company cannot be disallowed and added to the income of the appellant company. appellant company.
The Commissioner (Appeal) erred in not considering the The Commissioner (Appeal) erred in not considering the The Commissioner (Appeal) erred in not considering the ground raised
by the Appellant Company that the ground raised by the Appellant Company that the ground raised by the Appellant Company that the ted adjustment to the disallowance U/s 36(1)(va) is not permit disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action returned income U/s 143(1) of the Act: and hence the action returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra of the Ld AO is ultra-virus.
7. Your appellant craves leave to add to, alter, amend or delete Your appellant craves leave to add to, alter, amend or delete Your appellant craves leave to add to, alter, amend or delete any of the foregoing grounds of appeal. any of the foregoing grounds of appeal.
Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 4 & 1707/M/2022 ITA Nos. 1708 & 2.1 The grounds raised by the assessee in The grounds raised by the assessee in assessment year 2019 assessment year 2019- 20 are reproduced as under: 20 are reproduced as under:
On the facts and in the circumstances of the case and Rs. 2. in On the facts and in the circumstances of the case and Rs. 2. in On the facts and in the circumstances of the case and Rs. 2. in law, the Commissioner (Appeals) erred in disallowing the law, the Commissioner (Appeals) erred in disallowing the law, the Commissioner (Appeals) erred in disallowing the employees' contribution Rs. 10,76,069/ employees' contribution Rs. 10,76,069/- to Provident Fund to Provident Fund u/s. 36(1)(va) of the I.T. A u/s. 36(1)(va) of the I.T. Act, 1961.
The Commissioner (Appeals) erred in not following the The Commissioner (Appeals) erred in not following the The Commissioner (Appeals) erred in not following the binding decision of the Supreme Court in the case of CIT v. binding decision of the Supreme Court in the case of CIT v. binding decision of the Supreme Court in the case of CIT v. Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Alom Extrusions Ltd. [(2009) 319 ITR 306 (SC)] and the Bombay High Court in the case of CIT v. Ghatge Patil Bombay High Court in the case of CIT v. Ghatge Patil Bombay High Court in the case of CIT v. Ghatge Patil Transports Ltd. (368 ITR Transports Ltd. (368 ITR 749, Bom.) wherein it was held that 749, Bom.) wherein it was held that employees' contribution to Provident Fund deposited before employees' contribution to Provident Fund deposited before employees' contribution to Provident Fund deposited before the due date for filing the return of income of the appellant the due date for filing the return of income of the appellant the due date for filing the return of income of the appellant company cannot be disallowed and added to the income of the company cannot be disallowed and added to the income of the company cannot be disallowed and added to the income of the appellant company. appellant company. 3. The Commissioner (A The Commissioner (Appeal) erred in not considering the ppeal) erred in not considering the ground raised
by the Appellant Company that the ground raised by the Appellant Company that the ground raised by the Appellant Company that the disallowance U/s 36(1)(va) is not permitted adjustment to the disallowance U/s 36(1)(va) is not permitted adjustment to the disallowance U/s 36(1)(va) is not permitted adjustment to the returned income U/s 143(1) of the Act: and hence the action returned income U/s 143(1) of the Act: and hence the action returned income U/s 143(1) of the Act: and hence the action of the Ld AO is ultra of the Ld AO is ultra-virus.
3. We have heard riva We have heard rival submission of the parties l submission of the parties on the issue-in- dispute and perused the relevant material on record including the and perused the relevant material on record including the and perused the relevant material on record including the order of the lower authorities. We find that issue order of the lower authorities. We find that issue-in in-dispute in AY 2018-19 is in respect of disallowance of employer and employee 19 is in respect of disallowance of employer and employee 19 is in respect of disallowance of employer and employee
Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 5 & 1707/M/2022 ITA Nos. 1708 & contribution to PF paid after due date prescribed under relevant paid after due date prescribed under relevant paid after due date prescribed under relevant Provident Fund Act, however same was paid before due date of Provident Fund Act, however same was paid before due date of Provident Fund Act, however same was paid before due date of filing of return of income. In AY 2019 filing of return of income. In AY 2019-20, disallowance is only in 20, disallowance is only in respect of employee’s contribution to Provident Fund. These respect of employee’s contribution to Provident Fund. These respect of employee’s contribution to Provident Fund. These disallowances were ma disallowances were made by the Central Processing Centre, de by the Central Processing Centre, Bangalore in processing u/s 143(1) of the Income Bangalore in processing u/s 143(1) of the Income-tax Act, 1961. tax Act, 1961.
3.1 We find that issue We find that issue-in-dispute is covered in favour of the dispute is covered in favour of the assessee by the order of the Tribunal in the case of assessee by the order of the Tribunal in the case of assessee by the order of the Tribunal in the case of DCIT v. M/s Maharashtra Tourism Develop Maharashtra Tourism Development Corporation Ltd. in Corporation Ltd. in ITA No. 6425, 6426 & 1140/Mum/2017 6425, 6426 & 1140/Mum/2017 for assessment years 2011 for assessment years 2011-12, 2012-3 & 2014-15. The relevant finding of the Tribunal is 15. The relevant finding of the Tribunal is 15. The relevant finding of the Tribunal is reproduced as under: reproduced as under:
“16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is 16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is 16. Before us, the learned CIT DR Ms. Mamta Bansal stated that there is no question of allowance of differential payment of no question of allowance of differential payment of ₹65,462/ ₹65,462/- which has never been paid by the assessee and the amount which are not paid by never been paid by the assessee and the amount which are not paid by never been paid by the assessee and the amount which are not paid by the assessee amounting to the assessee amounting to ₹1,28,798/- being claimed on account of claimed on account of employees contribution of provident fund. The balance amount of employees contribution of provident fund. The balance amount of employees contribution of provident fund. The balance amount of ₹9,08,873/- was paid after the due date as prescribed under the was paid after the due date as prescribed under the was paid after the due date as prescribed under the Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 6 & 1707/M/2022 ITA Nos. 1708 & provident fund Act. She stated that the Assessing Officer clearly brought provident fund Act. She stated that the Assessing Officer clearly brought provident fund Act. She stated that the Assessing Officer clearly brought out the amount due and amount p out the amount due and amount paid. Now, the learned CIT DR further aid. Now, the learned CIT DR further stated that there is an amendment in the Provisions of Section 36(va), stated that there is an amendment in the Provisions of Section 36(va), stated that there is an amendment in the Provisions of Section 36(va), wherein explanation 2 was added by the Finance Act 2021, with effect wherein explanation 2 was added by the Finance Act 2021, with effect wherein explanation 2 was added by the Finance Act 2021, with effect from 01.04.2021 and the relevant explanation read as under: from 01.04.2021 and the relevant explanation read as under: from 01.04.2021 and the relevant explanation read as under: - “[Explanation- -2- For the removal of doubts, it is hereby clarified that the For the removal of doubts, it is hereby clarified that the provisions of section 43B shall not apply and shall be deemed never to provisions of section 43B shall not apply and shall be deemed never to provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the “due date” under have been applied for the purposes of determining the “due date” under have been applied for the purposes of determining the “due date” under this clause;]
The learned CIT DR stated that this 17. The learned CIT DR stated that this is only clarificatory explanation is only clarificatory explanation and normal presumption is that these provisions have and normal presumption is that these provisions have been in the Act been in the Act from the very inception, once it is clarificatory for this, she relied on CIT from the very inception, once it is clarificatory for this, she relied on CIT from the very inception, once it is clarificatory for this, she relied on CIT v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold v. Podar Cement (Pvt.) Ltd. [1997] 226 ITR 625 (SC) and CIT vs. Gold Coin Health Food (P.) Ltd [2008] 304 ITR 308 (SC). Health Food (P.) Ltd [2008] 304 ITR 308 (SC).
On the other hand, the learned Counsel for the assessee relied on the 18. On the other hand, the learned Counsel for the assessee relied on the 18. On the other hand, the learned Counsel for the assessee relied on the decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics decision of Hyderabad Bench of ITAT in the case of Salzgitter Hydraulics (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad (P.) Ltd. Vs. ITO (2021) 128 taxmann.com 192 (Hyderabad – Trib.) dated 15.06.2021, wherein it is held that the provident fund dated 15.06.2021, wherein it is held that the provident fund dated 15.06.2021, wherein it is held that the provident fund contribution received from employees deposited by assessee before the contribution received from employees deposited by assessee before the contribution received from employees deposited by assessee before the due date of filing of return under section 139(1) of the Act but after the due date of filing of return under section 139(1) of the Act but after the due date of filing of return under section 139(1) of the Act but after the due date prescribed in the relevant statute of due date prescribed in the relevant statute of provident Fund Act is to be provident Fund Act is to be allowed despite the fact that legislation has not only incorporated allowed despite the fact that legislation has not only incorporated allowed despite the fact that legislation has not only incorporated necessary amendment in section 36(1)(va) of the Act by inserting necessary amendment in section 36(1)(va) of the Act by inserting necessary amendment in section 36(1)(va) of the Act by inserting explanation 2 as well as explanation 5 to section 43B vide Finance Act, explanation 2 as well as explanation 5 to section 43B vide Finance Act, explanation 2 as well as explanation 5 to section 43B vide Finance Act, 2021 with effect from 0 2021 with effect from 01.04.2021, wherein it is clarified that the 1.04.2021, wherein it is clarified that the provisions of section shall not apply and shall be deemed to have been provisions of section shall not apply and shall be deemed to have been provisions of section shall not apply and shall be deemed to have been applied to a sum received by assessee from any of his employees covered applied to a sum received by assessee from any of his employees covered applied to a sum received by assessee from any of his employees covered
Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 7 & 1707/M/2022 ITA Nos. 1708 & by section 2(24)(x) of the Act because this explanations are prospect by section 2(24)(x) of the Act because this explanations are prospect by section 2(24)(x) of the Act because this explanations are prospective and not retrospective. The relevant Para 2 of the case reads as under: and not retrospective. The relevant Para 2 of the case reads as under: and not retrospective. The relevant Para 2 of the case reads as under: -
2. Coming to the sole substantive issue of ESI/PF disallowance of Rs. “2. Coming to the sole substantive issue of ESI/PF disallowance of Rs. “2. Coming to the sole substantive issue of ESI/PF disallowance of Rs. 1,09,343/- and Rs. 3,52,622/ and Rs. 3,52,622/-, the assessee's and revenue's stand is that , the assessee's and revenue's stand is that the same has been paid before the the same has been paid before the due date of filing sec. 139(1) return due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; and after the due date prescribed in the corresponding statutes; and after the due date prescribed in the corresponding statutes; respectively. I notice in respectively. I notice in this factual backdrop that the legislature has not this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as only incorporated necessary amendments in Sections 36(va) as well as only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued de Finance Act, 2021 to this effect but also the CBDT has issued de Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1-4-2021 only. Memorandum of Explanation that the same applies w.e.f. 1 Memorandum of Explanation that the same applies w.e.f. 1 It is further not an issue that the forergoing legislative amendments It is further not an issue that the forergoing legislative amendments It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowance have proposed employers contributions; disallowances u/s 43B as s u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping against employee u/s 36 (va) of the Act; respectively. However, keeping against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only in mind the fact that the same has been clarified to be applicable only in mind the fact that the same has been clarified to be applicable only with prospective effect from 1 with prospective effect from 1-4-2021, I hold that the impugned 2021, I hold that the impugned disallowance is not sustainable in disallowance is not sustainable in view of all these latest developments view of all these latest developments even if the Revenue's case is supported by the following case law. even if the Revenue's case is supported by the following case law.” even if the Revenue's case is supported by the following case law.”
In view of the above, we are of the view that the legislative 19. In view of the above, we are of the view that the legislative 19. In view of the above, we are of the view that the legislative amendments incorporated in section 36(1)(va) and 43B of the Act by amendments incorporated in section 36(1)(va) and 43B of the Act by amendments incorporated in section 36(1)(va) and 43B of the Act by the Finance Act, the Finance Act, 2021 by inserting explanation 2 and explanation 5 to 2021 by inserting explanation 2 and explanation 5 to the respective provisions, are prospective in application with effect from the respective provisions, are prospective in application with effect from the respective provisions, are prospective in application with effect from 01.04.2021. Hence, we find no infirmity in the order of Commissioner of 01.04.2021. Hence, we find no infirmity in the order of Commissioner of 01.04.2021. Hence, we find no infirmity in the order of Commissioner of Income Tax (Appeals). Hence, the appeal of the Revenue Income Tax (Appeals). Hence, the appeal of the Revenue is dismissed. is dismissed.”
3.2 Further, the Tribunal in in the case of Further, the Tribunal in ITA No. 2059/M/2021 in the case of Further, the Tribunal in ITA No. 2059/M/2021 in the case of M/s Haldiram Foods International Pvt. Ltd. has held that amended M/s Haldiram Foods International Pvt. Ltd. has held that amended M/s Haldiram Foods International Pvt. Ltd. has held that amended
Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 8 & 1707/M/2022 ITA Nos. 1708 & provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be provisions contended u/s 43B r.w.s. 36(1)(va) of the Act will be effective from the assessment year 2021 effective from the assessment year 2021-22. The relevant finding of relevant finding of the Tribunal is reproduced as under: the Tribunal is reproduced as under:
11. In view of what has been discussed above, we are of the considered 11. In view of what has been discussed above, we are of the considered 11. In view of what has been discussed above, we are of the considered view that since the amended provisions contained under section 43B view that since the amended provisions contained under section 43B view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable f read with section 36(1)(va) of the Act are not applicable f read with section 36(1)(va) of the Act are not applicable for the year under consideration i.e. A.Y. 2018 under consideration i.e. A.Y. 2018-19 as the amendment will be effective 19 as the amendment will be effective from A.Y. 2021 from A.Y. 2021-22 and the AO/ Ld. CIT(A) have erred in disallowing the 22 and the AO/ Ld. CIT(A) have erred in disallowing the same. Resultantly, impugned order passed by Ld. CIT(A) is not same. Resultantly, impugned order passed by Ld. CIT(A) is not same. Resultantly, impugned order passed by Ld. CIT(A) is not sustainable in the eyes of law hence s sustainable in the eyes of law hence set aside and AO is directed to allow et aside and AO is directed to allow the employees’ contribution deposited by the assessee well before filing the employees’ contribution deposited by the assessee well before filing the employees’ contribution deposited by the assessee well before filing the return of income. Hence, appeal filed by the assessee is allowed. the return of income. Hence, appeal filed by the assessee is allowed. the return of income. Hence, appeal filed by the assessee is allowed.
3.3 Further Tribunal, Delhi Bench in order dated 22.03.2022 in Further Tribunal, Delhi Bench in order dated 22.03.2022 in Further Tribunal, Delhi Bench in order dated 22.03.2022 in case of M/s Chintoo Creations v. DCIT in Chintoo Creations v. DCIT in ITA No. 1772/Del/2021 Chintoo Creations v. DCIT in ITA No. 1772/Del/2021 held as under :
“(D.2.1) In view of foregoing discussion, we come to the following (D.2.1) In view of foregoing discussion, we come to the following (D.2.1) In view of foregoing discussion, we come to the following conclusions: (a) The fact that payments amounting to aforesaid (a) The fact that payments amounting to aforesaid (a) The fact that payments amounting to aforesaid Rs.21,63,304/ Rs.21,63,304/- by way of employees contribution to by way of employees contribution to provident fund and ESI were made by the assessee after provident fund and ESI were made by the assessee after provident fund and ESI were made by the assessee after stipulated date prescribed under the relevant laws stipulated date prescribed under the relevant laws stipulated date prescribed under the relevant laws governing provident fund and ESI, but before the due date governing provident fund and ESI, but before the governing provident fund and ESI, but before the Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 9 & 1707/M/2022 ITA Nos. 1708 & of filing of return of income prescribed u/s 139(1) of of filing of return of income prescribed u/s 139(1) of of filing of return of income prescribed u/s 139(1) of Income Tax Act; is not in dispute. Income Tax Act; is not in dispute.
(b) Whether the aforesaid amendments to Income Tax Act (b) Whether the aforesaid amendments to Income Tax Act (b) Whether the aforesaid amendments to Income Tax Act by way of Finance Act, 2021 are retrospective or by way of Finance Act, 2021 are retrospective or by way of Finance Act, 2021 are retrospective or prospective, is debatable and controversial. prospective, is debatable and controversial.
(c) Adj (c) Adjustments made by Revenue u/s 143(1) of Income ustments made by Revenue u/s 143(1) of Income Tax Act, whereby aforesaid additions of Rs.21,63,304/- Tax Act, whereby aforesaid additions of Rs.21,63,304/ Tax Act, whereby aforesaid additions of Rs.21,63,304/ were made, were unfair, unjust and bad in law. were made, were unfair, unjust and bad in law.
(d) Addition by way of adjustment and intimation u/s (d) Addition by way of adjustment and intimation u/s (d) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act on debatable and controversial 143(1) of Income Tax Act on debatable and controversial 143(1) of Income Tax Act on debatable and controversial issues is beyond the scope of Section 143(1) of Income Tax issues is beyond the scope of Section 143(1) of Income Tax issues is beyond the scope of Section 143(1) of Income Tax Act. Revenue was clearly in error in making the aforesaid Act. Revenue was clearly in error in making the aforesaid Act. Revenue was clearly in error in making the aforesaid adjustments. adjustments.
(e) Addition by way of adjustment and intimation u/s (e) Addition by way of adjustment and intimation u/s (e) Addition by way of adjustment and intimation u/s 143(1) of Income Tax Act, on the basis of retrospective 143(1) of Income Tax Act, on the basis of retrospective 143(1) of Income Tax Act, on the basis of retrospective amendment to Inc amendment to Income Tax Act is beyond the scope of ome Tax Act is beyond the scope of Section 143(1) of Income Tax Act. Section 143(1) of Income Tax Act.
(f) In the present appeal before us, addition of aforesaid (f) In the present appeal before us, addition of aforesaid (f) In the present appeal before us, addition of aforesaid amount of Rs.21,63,304/ amount of Rs.21,63,304/- has been made by way of has been made by way of adjustments and intimation u/s 143(1) of Income Tax Act, adjustments and intimation u/s 143(1) of Income Tax Act, adjustments and intimation u/s 143(1) of Income Tax Act, on a debatable and co on a debatable and controversial issue, and Ld. CIT(A) did ntroversial issue, and Ld. CIT(A) did err in law, in not deleting this addition. err in law, in not deleting this addition.
(E) In the light of the foregoing conclusions in paragraph (D.2.1) of this (E) In the light of the foregoing conclusions in paragraph (D.2.1) of this (E) In the light of the foregoing conclusions in paragraph (D.2.1) of this order, we are of the view that the aforesaid additions of Rs.21,63,304/ order, we are of the view that the aforesaid additions of Rs.21,63,304/ order, we are of the view that the aforesaid additions of Rs.21,63,304/- by way of adjustment and i by way of adjustment and intimation u/s 143(1) of Income Tax Act were ntimation u/s 143(1) of Income Tax Act were Della Adventure & Resorts Pvt. Ltd. Della Adventure & Resorts Pvt. Ltd. 10 & 1707/M/2022 ITA Nos. 1708 & beyond the scope of Section 143(1) of Income beyond the scope of Section 143(1) of Income Tax Act; and further, that Tax Act; and further, that the Ld. CIT(A) erred in law in confirming the aforesaid addition on a the Ld. CIT(A) erred in law in confirming the aforesaid addition on a the Ld. CIT(A) erred in law in confirming the aforesaid addition on a debatable and controversial issue. Accordingly, we set aside the debatable and controversial issue. Accordingly, we set aside the debatable and controversial issue. Accordingly, we set aside the impugned appellate order dated 09.09.2020 of the Ld. CIT(A), and direct ned appellate order dated 09.09.2020 of the Ld. CIT(A), and direct ned appellate order dated 09.09.2020 of the Ld. CIT(A), and direct the Assessing Officer to delete the aforesaid addition of Rs.21,63,304/ the Assessing Officer to delete the aforesaid addition of Rs.21,63,304/ the Assessing Officer to delete the aforesaid addition of Rs.21,63,304/- (E.1) By way of abundant caution, we hereby clarify that we have not (E.1) By way of abundant caution, we hereby clarify that we have not (E.1) By way of abundant caution, we hereby clarify that we have not expressed any view in this order, on whether t expressed any view in this order, on whether the aforesaid amendments he aforesaid amendments brought in by Finance Act, 2021 [whereby Explanation brought in by Finance Act, 2021 [whereby Explanation-2 was inserted in 2 was inserted in Section 36(1)(va) of Income Tax Act and Explanation Section 36(1)(va) of Income Tax Act and Explanation-5 was inserted in 5 was inserted in Section 43B of Income Tax Act] are prospective or retrospective. In the Section 43B of Income Tax Act] are prospective or retrospective. In the Section 43B of Income Tax Act] are prospective or retrospective. In the light of our decisi light of our decision in foregoing paragraph (E) of this order; this issue on in foregoing paragraph (E) of this order; this issue is merely academic in nature; hence not decided. is merely academic in nature; hence not decided.” 3.4 Respectfully following the above decisions of the Tribunal, we Respectfully following the above decisions of the Tribunal, we Respectfully following the above decisions of the Tribunal, we hold that no disallowance hold that no disallowance for delayed payment of PF for delayed payment of PF could be made in the case of the assessee assessee u/s 143(1) of the Act being debatable u/s 143(1) of the Act being debatable issue. The grounds raised by the assessee are accordingly The grounds raised by the assessee are accordingly The grounds raised by the assessee are accordingly allowed in both the appeals.
In the result, the appeals filed by the assessee are allowed. In the result, the appeals filed by the assessee are allowed. In the result, the appeals filed by the assessee are allowed.