M/S. SUDERSHAN GEARS,MUMBAI vs. ITO WD-17(3) (1) , MUMBAI

The issue raised is that learned CIT(A) erred in sustaining to disallowance of Rs. 4,75,259/- under section 36(1)(va) of the I.T. Act pertaining to PF/ESIC contribution paid after due date made by CPC under section 143(1) of the I.T. Act.

Brief facts of the case are that in the order under section 143(1) of the I.T. Act passed by CPC, Bangalore disallowing the aforesaid sum.

Against the above order the assessee appealed before learned CIT(A). Learned CIT(A) noted that PF&ESIC have been deposited after the due date but before the date of filing of return. However, learned CIT(A) upheld the action by referring the amendment in the Act.

Against this order the assessee is in appeal before the ITAT.

I have heard both the parties and perused the record. I find that prior to the amendment there were Hon'ble Bombay High Court decision which laid down that deposit of the sum up to the date of filing of return is sufficient compliance. The Finance Act, 2021 has provided an explanation in this regard for the disallowance of the sum which is paid after the due date. When this fact is taken into account by no stretch of imagination it can said that the above said adjustment can fall under the category of 143(1) prima-facie adjustment. Hence, I hold that CPC has no jurisdiction of adjustment u/s. 143(1) on this issue where admittedly there were decisions in favour of the assessee from the Hon’ble High Courts and the legislature has brought in an Explanation by Finance Act, 2021 in this regard subsequently. Moreover, as regards, merits of the case the aforesaid explanation was added by Finance Act, 2021 and the said explanation in my considered opinion cannot be said to be retrospective. The assessment year during the present case is AY 2018-19 and is prior to the said amendment/insertion. Hence, on merits also, the issue is covered in favour of the assessee as before the amendment, there were catena of decisions of Hon’ble Bombay High Court in favor of assessee on the said issue.

In the result, the appeal by the assessee is allowed and the orders of the authority below are set aside.