GEETA UDYOG,MUMBAI vs. ADIT CPC, BENGALURU

आदेश / O R D E R

PER AMARJIT SINGH, AM:

1. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax Appeals), National Faceless Appeal Centre (NFAC is not justified in upholding the determination of total income of appellant in the limitation u/s 143(1) of the Act, at Rs.8,42,64,580/- as against the returned income of Rs.8,37,15,480/-, on account of the Geeta Udyog Vs. ADIT, CPC, Bengaluru disallowance of Rs.5,49,046/- made u/s 36(1)(va) of the Act, based upon the details in the Tax Audit Report in Form 3CD.

2. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals), NFAC ought to have appreciated that the aforesaid disallowance of Rs.5,49,046/- in respect of the belated payments of the Employee's share of PF Rs.4,66,648/- and ESI Rs.82,398/- was allowable having regard to the judgment of the Hon'ble Bombay High Court in the case of Pranav Agro Indus. Ltd. vide order dated 08.07.2019 and Ghatge Patil Transport Ltd. (368 ITR 749 - Bombay) since the same has been paid before the due date of filing the return of income u/s 139(1) of the Act and hence, the disallowance made ought to have been deleted.

4. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals), NFAC ought to have appreciated that the aforesaid amendments by the Finance Act, 2021 cannot be regarded as retrospective in nature as they were not in the nature of a beneficial legislation to remove intended hardships cast on the assessee and therefore, sustained on this basis is oppose of the appellant's case, the disallowance sustained on this basis is opposed to law and facts.

6. The appellant craves leave to add, amend, alter, modify, delete and/or change all or any above grounds on or before the date of hearing.”

Geeta Udyog Vs. ADIT, CPC, Bengaluru on 21.01.2022. Therefore, requested that there was bonafide reason for delay in filing this appeal by 32 days and the same may be condoned. 3. Heard both the side and perused the material on record. We consider that there was a reasonable cause for marginal delay in filing the appeal because of non receipt of order of the ld. CIT(A). Therefore, we condone the delay in filing of this appeal.

5. The assessee has filed appeal before the ld. CIT(A), however the ld. CIT(A) has dismissed the appeal of the assessee.

Geeta Udyog Vs. ADIT, CPC, Bengaluru held that both employers and employee’s contributions are covered under amendment to section 43B and judgment of the Hon’ble Supreme Court in CIT v. Alom Extrusions Ltd. [2009] 319 ITR 306/185 Taxman 416 that payment made was subject to benefit of section 43B. We have also gone through the decision of ITAT Chennai in the case of Adhyar Anand Bhavan Sweets India P. Ltd. (2022) 134 taxmann.com 56 wherein it is held that amendment brought in by inserting Explanation 2 to the provisions of section 36(1)(va) r.w.s. 43B of the Act is prospective in nature and would be applicable from assessment year 2021-22.

In the case of the assessee, it had remitted the employee’s contribution towards PF/ESIC beyond the due date for payment as specified in PF/ESIC Act, but within the due date for filing the return of income, therefore, following the aforesaid decisions, we consider that Ld. CIT(A) is not justified in disallowing the impugned claim of deduction of the assessee. Accordingly, we decide this issue in favour of the assessee and disallowance made by the Assessing Officer is deleted. Since we have decided the issue in favour of the assessee, therefore, ground No. 1 of the assessee is not required adjudication.

Order pronounced in the open court on 26.04.2022