PAREKHPLAST INDIA LTD,MUMBAI vs. DCIT, MUMBAI

Shri Tejas Sodha Shah appearing on behalf of the assessee submitted that the assessee has assailed disallowance of Rs.9,39,141/- in respect of delay in payment of Provident Fund and Rs.17,751/- ESI contribution under section. 36(1)(va) r.w.s. 43B of the Income Tax Act, 1961[ in short ‘the Act’]. The ld.Authorized Representative for the assessee submitted that the Central Processing Centre (CPC), Bengaluru vide intimation u/s. 143(1) of the Act dated 17/12/2019 disallowed aforesaid contributions u/s. 43B of the Act. The assessee filed appeal before the CIT(A) assailing the disallowance. The CIT(A) referring to the amendment to section 36(1)(va) and section 43B of the Act by the Finance Act, 2021 disallowed assessee’s claim u/s. 36(1)(va) of the Act. The ld.Authorized Representative for the assessee vehemently submitted that the CIT(A) failed to follow the decision of Hon'ble Jurisdictional High Court in the case of Hindustan Organic Chemical Ltd., 366 ITR1(Bom) and CIT vs. Ghatge Patil Transport Ltd., 368 ITR 749(Bom). The ld.Authorized Representative of the assessee submitted that the Tribunal in the case of Mindcrest (India) P.Ltd. vs. Asst. DIT in decided on 26/0/2022 and various other decisions has held the amendment to section 36(1)(va) and section 43B of the Act is prospective effective from 01/04/2021.

Per contra, ShriR.A.Dhyani representing the Department vehemently defended the impugned order. The ld. Departmental Representative submitted that provisions of section 36(1)(va) of the Act has been amended by the Finance Act,2021. In amendment the phrase “ shall be deemed never to have been applied” has been inserted to section 36(1)(va) and section 43B of the Act. This clearly shows that the amendment is retrospective. To support his contention ld. Departmental Representative placed reliance on the decision in the case of CIT vs. Gold Coin Food Processing Pvt.172 Taxman 386(SC).

Both sides heard orders of authorities below examined and the decisions on which rival sides have place reliance considered. The solitary issue in the present appeal for our consideration is whether employees contribution towards Provident Fund and ESI made by the assessee after due date as specified under the relevant Acts but before due date of filing return under section 139(1) of the Act would enable the assessee to claim deduction on such contributions under section 36(1)(va) of the Act.

The contention of Revenue is that by virtue of amendment to section 36(1)(va) and section 43B of the Act by Finance Act, 2021 the deduction is not allowable as the amendment is retrospective in application. We find that Chennai Bench of the Tribunal in the case of Adayar Ananda Bhavan Sweets India Pvt. Ltd. vs. ACIT 134 taxmann.com 56 has considered the issue of retrospective applicability of amendment to the provisions of section 36(1)(va) of the Act and also the amendment to section 43B of the Act by the Finance Act, 2021. The Co-ordinate Bench of Tribunal after considering various decisions held that the amendment to section 36(1)(va) of the Act and section 43B is prospective and would be effectively applicable from assessment year 2021-22. Similar view has been expressed by various Benches of the Tribunal. Some of the decisions holding aforesaid amendment prospective, effect from assessment year 2021-22 are as under:

Since, the amendment to section 36(1)(va) and section 43B of the Act by the Finance Act, 2021 has been held to be prospective, effective from assessment year 2021-22, ergo, the decision rendered by Hon'ble Bombay High Court in the case of CIT vs. Ghatge Patil Transport Ltd.(supra) would apply in the assessment year under appeal. Consequently, the contribution made by assessee towards ESI and Provident Fund beyond the due date as specified in the relevant Act but before due date for filing return of income u/s 139(1) of the Act would be allowable as deduction u/s. 36(1)(va) of the Act. Hence, the solitary issue raised in appeal is allowed.

In the result, appeal by assessee is allowed.