Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nIncome Tax Appellate Tribunal - Kolkata\nM/S Jayanta Food Products, Kolkata vs Dcit, Cpc, Bangalore on 16 February, 2022\n                                               1\n                                                                                          I.T.A. Nos. 383-384/Kol/2021\n                                                           Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n\n               आयकर अपील य अधीकरण, यायपीठ -"C (SMC)" कोलकाता,\n     IN THE INCOME TAX APPELLATE TRIBUNAL "C(SMC)" BENCH: KOLKATA\n                   [Before Shri A. T. Varkey, Judicial Member]\n                             I.T.A. Nos. 383 & 384/Kol/2021\n                         Assessment Years: 2018-19 & 2019-20\n\n     Jayanta Food Products                  Vs.    Deputy Commissioner of Income-\n     (PAN: AACFJ3216B)                             tax, CPC.\n     Appellant                                     Respondent\n\n\n            Date of Hearing (Virtual)    08.02.2022\n            Date of Pronouncement         16.02.2022\n            For the Appellant            None\n            For the Respondent           Shri Archana Gupta, Sr. DR\n\n                                           ORDER\n\n     These are appeals preferred by the assessee against the separate orders of the\nCommissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter\nreferred to as 'CIT(A)'] dated 30/07/2021 for assessment years 2018-19 and 2019-20.\n\n2.     None appeared on behalf of the assessee at the time of hearing. At the outset, it is\nnoticed that the only issue in both these appeals that is in dispute before this Tribunal is\nagainst the action of the Ld. CIT(A) confirming disallowance of employees' contribution\nmade to the respective funds of the Government under PF & ESI Act. According to the\nauthorities below, since the assessee has not remitted the employees' contribution on the due\ndate as prescribed by the PF & ESI Act, the contribution made belatedly cannot be allowed.\nHowever, according to the assessee since the assessee has undisputedly made the remittance\nin respect of employees' contribution of PF as well as ESI before filing of the return of\nincome u/s 139 of the Act, no disallowance is warranted. According to the assessee, the\nCIT(A) erred in referring to the Amendment brought in by Finance Act 2021 w.e.f.\n01.04.2021 which inserted an Explanation to section 36(1)(va) and section 43B of the Act\nand erred in holding it as clarificatory and so, retrospective in nature. Whereas according to\nassessee, it is only prospective in nature and cannot disturb the binding judicial precedents in\nfavour of assessee. According to the assessee, any way this issue is no longer res integra as\n                                                     2\n                                                                                                 I.T.A. Nos. 383-384/Kol/2021\n                                                                  Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n\nheld by this Tribunal in the case of Lumino Industries Ltd. vs. ACIT, Circle-5(1), Kolkata in\nI.T.A. No.365/Kol/2021 for AY 2015-16 order dated 17.11.2021, wherein assessee's favour\nview was taken by the Tribunal after holding that the amendment brought in by Finance Act,\n2021 w.e.f 1.04.2021 is prospective in operation and so will be in force from AY 2021-22\nonwards and not retrospective. The relevant portions of decision which reads as under:-\n\n      "4.      Ground no. 1 is preferred by the assessee against the action of Ld. CIT(A) (NFAC)\n      [hereinafter referred to Ld. CIT(A)]      confirming the action of AO disallowing the sum of Rs.\n      10,946/- being contribution of employees' share towards ESI, PF, Superannuation Fund or any other\n      fund set up for the welfare of the employee u/s 36(1)(va) read with Section 2(24)(x) of the Income\n      Tax Act, 1961 [hereinafter referred to as the Act] when the payments were made within the due dates\n      of filing of return u/s 139 of the Act.\n\n 5.       Brief facts of the case as noted by the AO is that from the Tax Audit Report submitted by the\n      assessee, he noted that the assessee company has made delayed payment amounting to Rs. 10,946/-\n      in respect of employees contribution towards provident fund as per the Provident Fund (hereinafter\n      referred to as the PF Act). According to AO, in view of Section 2(24)(x) rws 36(1)(va) of the Act, the\n      employees contribution is to be paid within the due date of payment as prescribed in the respective\n      Acts (PF/ESI Act) to claim deduction. The AO took note of the decision of the Hon'bleGujrat High\n      Court in the case of CIT vs. Gujrat State Road Transport Corporation [265 CTR 64] and the case of\n      LKP Securities Ltd. passed by the ITAT Mumbai wherein it was held that employees' contribution\n      can be allowed only if the same is deposited within the due date prescribed under the respective Act's\n      and not within the due date of filing return of income. And the AO cited the CBDT Circular No.\n      22/2015 dated 17.12.2015 for disallowing Rs. 10,946/- which was added back to the total income of\n      the assessee.\n\n      6.       Aggrieved the assessee preferred an appeal before the Ld. CIT(A) who confirmed the appeal\n      by holding as under:\n\n              "5.c)   Findings:-\n\n The addition in this case involves a disallowance on account of delayed payment in respect of\n            Employees' contribution to EPF as per the provisions of Section 36(1)(va) of the Act. The\n            appellant has stated that the same should have been allowed as the payments were made\n            before the due date of the filing of the ITR. The appellant has quoted a number of judgments\n            in his favour. However it is seen that the Hon'bleGujrat High Court in CIT vs. Gujarat State\n            Road Transport Corporation (2014) 366 ITR 170 (Guj) and the Hon'ble Kerala High Court in\n            CIT vs. Merchant (2015) 280 CTR 381 (Ker) have clearly held that the scope of section 43B\n            and Section 36(1)(va) are different and thus, there is no question of reading both the\n            provisions together to consider whether the assessee is entitled to deduction in respect of the\n            sum belated by paid towards such contribution, especially, when such sums are received by\n            the assessee (employer) from his employee.\n\n            The explanation to Section 36(1)(va) of the IT Act, 1961 clearly defines that the 'due date\n            means the date by which the assessee is required as an employer to credit as employees'\n            contribution into the employees' account". This fact has been further clarified in the amended\n            provisions of the Section 36(1)(va) in the Finance Act, 2021 wherein it has been stated that the\n            provisions of Section 43B does not apply to Section 36(1)(va) and is deemed to never have\n            been applied to a sum received by the assessee from any of his employees to which provisions\n            of sub-clause (x) of clause (24) of section 2 of the IT Act, applies. The clarificatory amendment\n            is, by its very definition, retrospective in nature and, therefore, the disallowance as made by\n            the AO is perfectly in order, and therefore, the addition is confirmed.\n                                               3\n                                                                                            I.T.A. Nos. 383-384/Kol/2021\n                                                             Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n      This ground of appeal is dismissed."\n\n7.      Aggrieved by the action of Ld. CIT(A) the assessee is before us.\n\n8.      We have heard both the parties and perused the records. We find that the assessee had\nremitted the payment which are in the nature of contribution of employees' share towards PF to the\nfund set up for the welfare of the employees within the due date of filing of return of income u/s\n139(1) of the Act. In the present case the AO have disallowed the payment made towards these funds\nby relying on CBDT Circular No. 22/2015 dated 17.12.2015 and by taking note of the decision of\nHon'bleGujrat High Court in the case of M/s Gujrat State Road Transport (supra) and ITAT\n(Mumbai) decision in the case of M/s LKP Securities(supra) that the employees contribution to\nPF/ESI can be allowed only if the same has been deposited within the due date prescribed under the\nrespective Act (PF and ESI Act) and not before the due date of filing of return of income. On appeal,\nthe Ld. CIT(A) has taken note of the amendment brought in by Finance Act, 2021, by virtue of it has\nbeen clarified that Section 43B does not apply to Section 36(1)(va) of the Act and it is deemed to\nnever have been applied to a sum received by the assessee from any of his employees to which\nprovisions of Section 2(24)(x) applies. And thus according to Ld. CIT(A), it is a clarificatory\namendment and so is retrospective in operation and therefore he upheld the action of AO which\naction of Ld. CIT(A) has been challenged before us.\n\n9.      Assailing the action of Ld. CIT(A) the Ld. A.R. ShriMiraj D Shah submitted that the\namendment brought in by the Finance Act 2021 is prospective in nature and for buttressing this\nsubmission he drew our attention to the decision of Hon'ble Supreme Court in the case of M/s M.M.\nAqua Technologies Ltd. vs. CIT, Delhi and drew our attention to Para 22 wherein the Hon'ble\nSupreme Court has held that if the retrospectivity of a taxing statute is urged due to the expression\nused in the Statute is "for the removal of doubts" cannot be presumed to be retrospective, if it alters\nor changes the law as it earlier stood and has relied on several decisions of the Hon'ble Supreme\nCourt which reads as under:\n\n      "22.     Second a retrospective provision in a tax act which is 'for the removal of doubts'\n      cannot be presumed to be retrospective, even where such language is used, if it alters or\n      changes the law as it earlier stood. This was stated in SedcoForexInternational Drill. Inc. vs.\n      CIT (2005) 12 SCC 717 as follows:\n\n 17.       As was affirmed by this Court in Goslino Mario [(2000) 10 SCC 165] a\n              cardinal principle of the tax law is that the law to be applied is that which is in force\n              in the relevant assessment year unless otherwise provided expressly or by necessary\n              implication. (See also Reliance Jute and Industries Ltd. v. CIT [(1980) 1 SCC 139].)\nAn Explanation to a statutory provision may fulfil the purpose of clearing up an\n              ambiguity in the main provision or an Explanation can add to and widen the scope of\n              the main section [See Sonia Bhatia v. State of U.P., (1981) 2 SCC 585, 598]. If it is in\n              its nature clarificatory then the Explanation must be read into the main provision with\n              effect from the time that the main provision came into force [See Shyam Sunder v.\n              Ram Kumar, (2001) 8 SCC 24 (para 44); Brij Mohan Das Laxman Das v. CIT, (1997)\n              1 SCC 352, 354; CIT v. Podar Cement (P) Ltd., (1997) 5 SCC 482, 506]. But if it\n              changes the law it is not presumed to be retrospective, irrespective of the fact that the\n              phrases used are "it is declared" or "for the removal of doubts".\n\n              18.      There was and is no ambiguity in the main provision of Section 9(1)(ii). It\n              includes salaries in the total income of an assessee if the assessee has earned it in\n              India. The word "earned" had been judicially defined in S.G. Pgnatale [(1980)\n              124ITR 391 (Guj)] by the High Court of Gujarat, in our view, correctly, to mean as\n              income "arising or accruing in India". The amendment to the section by way of an\n              Explanation in 1983 effected a change in the scope of that judicial definition so as to\n              include with effect from 1979, "income payable for service rendered in India".\n                                                    4\n                                                                                                 I.T.A. Nos. 383-384/Kol/2021\n                                                                  Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n                 19.       When the Explanation seeks to give an artificial meaning to "earned in\n                 India" and brings about a change effectively in the existing law and in addition is\n                 stated to come into force with effect from a future date, there is no principle of\n                 interpretation which would justify reading the Explanation as operating\n                 retrospectively.\n\n      23.       This being the case, Explanation 3C is clarificatory - it explains Section 43B(d) as it\n      originally stood and does not purport to add a new condition retrospectively, as has wrongly\n      been held by the High Court.\n\n 24.       Third, any ambiguity in the language of Explanation 3C shall be resolved in favour\n      of the assessee as per Cape Brandy Syndicate v. Inland Revenue Commissioner (supra) as\n      followed by judgments of this Court - See Vodafone International Holdings BV v. Union of\n      India, (2012) 6 SCC 613 at paras 60 to 70 per Kapadia, C.J. and para 333, 334 per\n      Radhakrishnan, J."\n\n10.     And according to Ld. A.R. the Ld. CIT(A) erred in holding the later amendment brought in\nby Finance Act, 2021 to be retrospective and for that proposition he cited the Constitution Bench\ndecision of the Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd. 2015 (1)\nSCC 1 which decision has been taken note of by the Hon'ble Supreme Court in the case of M/s\nSnowtex Investment Ltd. vs. PCIT dated 30.04.2019 [Civil Appeal No(s). 4483 of 2019, Special\nLeave to appeal (c ) No. 20017/2017] wherein the Hon'ble Supreme Court has explained the test to\nbe applied to find out whether the intent of the legislature/Parliament is to give retrospective\noperation of law by taking note of the decision in the case of Vatika Township (supra) and held as\nunder:\n\n           The Test to be applied is essentially one of the intent of the legislature.\n\n      28.      In a more recent decision in Commissioner of Income Tax vs. Vatika Township Pvt.\n      Ltd. (2015) 1 SCC 1, a Constitution Bench of this Court held thus:\n\n                 42.1.     "Notes on Clauses" appended to the Finance Bill, 2002 while proposing\n                 insertion of proviso categorically states that 'this amendment will take effect from\n                 1.6.2002.' These become epigraphic 1 words, when seen in contradistinction to other\n                 amendments specifically stating those to be clarificatory or retrospectively depicting\n                 clear intention of the legislature. It can be seen from the same notes that a few other\n                 amendments in the Income tax Act made by the same Finance Act specifically making\n                 those amendments retrospective. For example, clause 40 seeks to amend S. 92-F.\n                 Clause (iii-a) of S. 92-F is amended "so as to clarify that the activities mentioned in\n                 the said clause include the carrying out of any work in pursuance of a contract".\n                 (emphasis supplied). This amendment takes effect retrospectively from 01.04.2002.\n                 Various other amendments also take place retrospectively. The Notes on Clauses\n                 show that the legislature is fully aware of three concepts:\n\n      i)           prospective amendment with effect from a fixed date;\n\n      ii)          retrospective amendment with effect from a fixed anterior date; and\n\n      iii)         clarificatory amendments which are retrospective in nature."\n\n      29.       In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of\n      this Court held that the provisions of Section 80AB which were introduced by the Finance (No.\n      2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature.\n      The Court held that the provision was made with prospective effect and the amendment would\n      not apply to assessment year 1979-1980 and 1980-1981 because the amended provision was\n      brought on the statute book after the assessment years in question.\n                                                5\n                                                                                            I.T.A. Nos. 383-384/Kol/2021\n                                                             Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n      30.       In conclusion, we therefore, hold that the amendment which was brought by\n      Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect\n      from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect\n      from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought\n      about a specific amendment in the Explanation to Section 73, insofar as trading in shares is\n      concerned, with effect from 1 April 2015. The latter amendment was intended to take effect\n      from the date stipulated by Parliament and we see no reason to hold either that it was\n      clarificatory or that the intent of Parliament was to give it retrospective effect.\n\n      31.       The consequence is that in A.Y. 2008-2009, the loss which occurred to the assessee\n      as a result of its activity of trading in shares (a loss arising from the business of speculation)\n      was not capable of being set off against the profits which it had earned against the business of\n      futures and options since the latter did not constitute profits and gains of a speculative\n      business.(Emhasis given by us )\n\n11.      Citing the aforesaid case law, ShriMiraj D Shah contended that in order to find out the\nlegislative intent as to whether the Parliament/legislature intended the amendment/explanation\nbrought in later to be retrospective in operation or not, then one may take the assistance of "Notes\non Clauses" which are appended to the Finance Bill concerned. ShriMiraj Shah drawing our\nattention to the Constitution Bench decision of Hon'be Supreme Court in Vatika Township Ltd.\n(supra) pointed out that Parliament/Legislature is aware of the three concepts before an amendment\nis brought in, which can be discerned from reading of the "Notes on Clauses" to the Bill which are\n(i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect\nfrom a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature.\n\n12.    So according to the Ld. A.R. in order to understand whether the amendment brought in by\nFinance Act, 2021, is retrospective or prospective in operation in respect of the present case, he\ndrew our attention to the memorandum explaining the Notes on Clauses of Finance Act, 2021.\nAccording to him, the clause 8 & 9 of the memorandum is relevant which are reproduced hereunder:\n\n      "Rationalisation of various Provisions\n\n              Payment by employer of employee contribution to a fund on or before due date\n\n              Clause (24) of section 2 of the Act provides an inclusive definition of the income. Sub-\n              clause (x) to the said clause provide that income to include any sum received by the\n              assessee from his employees as contribution to any provident fund or superannuation\n              fund or any fund set up under the provisions of ESI Act or any other fund for the\n              welfare of such employees. "\n\n Section 36 of the Act pertains to the other deductions. Sub-section (1) of the said\n              section provides for various deductions allowed while computing the income under the\n              head "Profits and gains of business or profession.\n\n              Clause (va) of the said sub-section provides for deduction of any sum received by the\n              assessee from any of his employees to which the provisions of sub-clause (x) of clause\n              (24) of section 2 apply, if such sum is credited by the assessee to the employee's\n              account in the relevant fund or funds on or before the due date. Explanation to the\n              said clause provides that, for the purposes of this clause, "due date" to mean the date\n              by which the assessee is required as an employer to credit an employee's contribution\n              to the employee's account in the relevant fund under any Act, rule, order or\n              notification issued there-under or under any standing order, award, contract of\n              service or otherwise.\n\n              Section 43B specifies the list of deductions that are admissible under the Act only\n              upon their actual payment. Employer's contribution is covered in clause (b) of section\n                                               6\n                                                                                           I.T.A. Nos. 383-384/Kol/2021\n                                                            Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n              43B. According to it, if any sum towards employer's contribution to any provident\n              fund or superannuation fund or gratuity fund or any other fund for the welfare of the\n              employees is actually paid by the assessee on or before the due date for furnishing the\n              return of the income under subsection (1) of section 139, assessee would be entitled to\n              deduction under section 43B and such deduction would be admissible for the\n              accounting year. This provision does not cover employee contribution referred to in\n              clause (va) of sub-section (1) of section 36 of the Act..\n\n              Though section 43B of the Act covers only employer's contribution and does not cover\n              employee contribution, some courts have applied the provision of section 43B on\n              employee contribution as well. There is a distinction between contribution and\n              employee's contribution towards welfare fund. It may be noted that employee's\n              contribution towards welfare funds is a mechanism to ensure the compliance by the\n              employers of the labour welfare laws. Hence, it needs to be stressed that the\n              employer's contribution towards welfare funds such as ESI and PF needs to be clearly\n              distinguished from the employee's contribution towards welfare funds. Employee's\n              contribution is employee own money and the employer deposits this contribution on\n              behalf of the employee in fiduciary capacity. By late deposit of employee contribution,\n              the employers get unjustly enriched by keeping the money belonging to the employees.\n              Clause (va) of sub-section (1) of Section 36 of the Act was inserted to the Act vide\n              Finance Act 1987 as a measures of penalizing employers who mis-utilize employee's\n              contributions.\n\n              Accordingly, in order to provide certainty, it is proposed to -\n\n              (i) amend clause (va) of sub-section (1) of section 36 of the Act by inserting another\n              explanation to the said clause to clarify that the provision of section 43B does not\n              apply and deemed to never have been applied for the purposes of determining the\n              "due date" under this clause; and\n\n              (ii) amend section 43B of the Act by inserting Explanation 5 to the said section to\n              clarify that the provisions of the said section do not apply and deemed to never have\n              been applied to a sum received by the assessee from any of his employees to which\n              provisions of sub-clause (x) of clause (24) of section 2 applies.\n\n              These amendments will take effect from 1st April, 2021 and will accordingly apply to\n              the assessment year 2021-22 and subsequent assessment years. [Clauses 8 and\n              9]"[Emphasis given by us]\n\n13.      Therefore, taking us through the relevant clauses of Notes of Clauses of Finance Act, 2021,\nhe pointed out to us that it is explicitly made clear that amendment will take effect from 1st April,\n2021 and therefore will accordingly apply to the assessment year 2021-11and subsequent years.\nTherefore according to ShriMiraj Shah the amended provision of Section 43B as well as Section\n36(1)(va) are not applicable in the assessment year under consideration for the present case as it is\nfor AY 2017-18 and therefore according to him, the decision of the Hon'ble Jurisdictional Calcutta\nHigh Court is binding on this issue as held in the case of CIT vs. M/s Vijayshree Ltd. in ITAT No.243\nof 2011 & GA No. 26607 of 2011, CIT vs. Philips Carbon Black Ltd. in GA No. 1382 of 2014 & ITAT\n31 of 2014, CIT vs. M/s Coal India Ltd. in ITA 12 of 2015, M/s Akzo Nobel India Ltd. vs. CIT in ITA\nNo. 110 of 2011 and therefore the claim of the assessee should be allowed. According to him, the\njurisdictional High Court's decision on this issue is therefore binding on this Tribunal ; and since\nthe employees' contribution was remitted by the assessee before the due date of filing of return of\nincome u/s 139(1) of the Act it is an allowable deduction. Therefore he wants us to overturn the\ndecisions of the lower authorities and uphold the claim of deduction on this issue.\n\n 14.   Per contra, the Ld. D.R. ShriJayantaKhanra supporting the decision of authorities below has\ncontended that the Hon'ble Delhi High Court in the case of CIT vs. Bharat Hotel Ltd. in 410 ITR 417\n                                               7\n                                                                                            I.T.A. Nos. 383-384/Kol/2021\n                                                             Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\nhas decided this issue in favour of the revenue and the Delhi Tribunal has followed the order of the\nHon'ble Delhi High Court in Bharat Hotel (supra) and upheld the action of the Department\ndisallowing the amount deposited by the assessee company in respect of the employees' contribution\nsince it was not deposited within the due date as prescribed by PF Fund and ESI Act. So therefore\nthe Ld. D.R. does not want us to interfere in the impugned order passed by the authorities below.\n\n15.      In his rejoinder, the Ld. A.R. ShriMiraj D Shah contended that even though the Delhi High\nCourt in the case of Bharat Hotels Ltd. (supra) had held in favor of the revenue, however the\nHon'ble High Court in that case (Bharat Hotels Ltd.) had not considered the earlier Division Bench\njudgment of the Delhi High Court which was binding on a Division Bench in the case of CIT vs.\nAimil Ltd. &Ors. Reported in 321 ITR 508 (Delhi) wherein the head notes reads as under:\n\n      "Late deposit of PF and ESI - During the assessment proceedings, the Assessing Officer (AO)\n      found that the assessee had deposited employers' contribution as well as employees'\n      contribution towards provident fund and ESI after the due date, as prescribed under the\n      relevant Act/Rules. Accordingly, he made addition of Rs. 42,58,574/- being employees'\n      contribution under Section 36(1)(va) of the Act and Rs. 30,68,583/- being employers'\n      contribution under Section 43B of the Act. CIT(A) deleted the addition by holding that the\n      assessee had made the payment before the due date" of filing of the return, which was a fact\n      apparent from the record - that if the employees' contribution is not deposited by the due date\n      prescribed under the relevant Acts and is deposited late, the employer not only pays interest\n      on delayed payment but can incur penalties also, for which specific provisions are made in the\n      Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make\n      the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income Tax\n      Act is concerned, the assessee can get the benefit if the actual payment is made before the\n      return is filed, as per the principle laid down by the Supreme Court in Vinay Cement - Decided\n      in favor of assessee."[Emphasis given by us]\n\n16.      Thus it was pointed out by the Ld. A.R. that the Hon'ble High Court Division Bench had\nearlier held in M/s Aimil Ltd. (supra) that the PF/ESI Act permits the employer to make deposit with\nsome delays, subject to the consequents as per the respective PF/ESI Acts, however insofar as the\nIncome Tax Act is concerned, the assessee can get the benefit of deduction if the actual payment is\nmade before the return is filed as per the principle laid down by the Hon'ble Supreme Court in Vinay\nCements reported in 213 CTR 268 (SC). Therefore, according to Ld. A.R., since the later judgment of\nthe Division Bench of Hon'ble Delhi High Court in Bharat Hotels Ltd.(supra) did not consider the\nCo-ordinate Bench decision as the case of CIT vs. Aimil Ltd. (supra) it cannot be a stare-decise. And\nmoreover it is settled position of law that when there is conflict between two decisions of the High\nCourt of equal strength [(DB) in this case], it cannot be said that later judgment need to be followed,\nunless a Full Bench of the High Court settled the issue either wise. However, when it comes to fiscal\nstatutes, according to ShriMiraj D Shah, in such circumstance [i.e, conflict of decisions/views of\nBenches of same strength and when there is no decision on the issue of jurisdictional High Court]\nthen, the decision in favour of assessee should be followed as held by the Hon'ble Supreme Court in\nthe Vegetable Products Ltd. 82 ITR 192 (SC) wherein it is settled when two views/interpretations are\npossible on an issue, then the view which is in favour of the assessee need to be followed. Taking note\nof this aspect, it was brought to our notice that the latest Delhi Tribunal order and Hyderabad\nTribunal Orders have held in favour of the assessee in NCC Ltd. vs. ACIT dated 27.09.2021 and also\nHyderabad Bench decision in ACIT vs. Nava Bharat Ventures Ltd. (2021) 10 TMI 403 wherein\nTribunal was pleased to direct deletion of the disallowance made by the AO in respect of the\npayment of employees contribution to ESI/PF. Therefore he prayed that the disallowance made by\nauthorities below be deleted on this score.\n\n17.     Have heard both the parties. We note that the Finance Bill, 2021 has brought in an\namendment which disallows the employees' contribution made in PF and ESI if not made within the\ndue date as prescribed by the respective statutes (PF and ESI Act). So after the amendment has been\ninserted according to ShriMiraj D Shah takes effect from 1st April, 2021 i.e AY 2021-22 and\nsubsequent assessment year and if the remittance of PF/ESI Employees' Contribution is not made\n                                                8\n                                                                                            I.T.A. Nos. 383-384/Kol/2021\n                                                             Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\nwithin the time prescribed by the PF/ESI Act then the remittance cannot be allowed as a deduction\nwhich is prospective in operation. Whereas according to Ld. CIT(A), the amendment brought in is\nclarificatory in nature so, retrospective in operation. So we have to adjudicate this issue whether the\namendment brought in by Finance Act, 2021 is prospective or retrospective in operation. We note\nthat before this amendment has been inserted by Finance Bill, 2021, the Hon'ble Jurisdictional\nCalcutta High Court in the case of ShriVijayshree Ltd. Ltd.(supra), M/s Philips Carbon Black\nLtd.(supra), M/s Coal India Ltd.(supra), M/s Akzo Nobel India Ltd. (supra) has held that the\npayment of employees' contribution if made by an assessee before the due date of filing of return of\nincome u/s 139(1) of the Act, is allowable as a deduction. We note that by Finance Act, 2021, the\nprovision of Section 36(1)(va) as well as Section 43B has been amended to this extend by inserting\nthe Explanation 2 whereby it is clarified that the provision of Section 43B shall not apply and shall\nbe deemed never to have been applied for the purpose of determining the due date under this clause.\nFor ready reference, we reproduce the Explanation-2 to Section 36(1)(va) as under:\n\n        "Section 36(1)(va)\n\n      Explanation-2 - For the removal of doubts, it is hereby clarified that the provisions of Section\n      43B shall not apply and shall be deemed never to have been applied for the purpose of\n      determining the 'due date' under this clause'\n\n 18.     We find that this amendment has been brought in the Act to provide certainty about the\napplicability of Section 43B in respect of belated payment of employees' contribution. In order to test\nwhether the amendment brought in later is retrospective or not one has to apply the test as laid by\nthe Hon'ble Supreme Court in the case of M/s Snowtex Investment Ltd. (supra) wherein the Hon'ble\nSupreme court took note of the law laid down on this issue by the Constitution Bench in M/s Vatika\nTownship Ltd. and held that the intent of the Parliament/legislature need to be looked into for\nascertaining whether the amendment should be retrospective or not. In Vatika Township Ltd. (supra)\nthe Hon'ble Supreme Court held that the notes on clauses appended to the Finance Bill will throw\nlight as to the legislative intent; because it has to be borne in mind that Parliament/legislature is\naware of three concepts before an amendment is brought in, which can be discerned from reading of\nthe "Notes on Clauses" to the Bill which are (i) prospective amendment with effect from a fixed date;\n(ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory\namendments which are retrospective in nature. So when we adjudicate whether the view of LdCIT(A)\nthat the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the "Notes on\nClauses and the relevant clauses 8 & 9 of the Finance Bill, 2021 (supra) pertaining to the issue in\nhand which in clear and unambiguous terms spells out the intention of Parliament that the\namendment shall take effect from          1st April, 2021 and therefore will accordingly apply to\nAssessment Year 2021-22 and subsequent years. So since the legislative intent is clear, the\namendment brought in by Finance Act, 2021 on this issue as discussed is prospective and Ld. CIT(A)\nerred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court's view in favor of\nassessee will hold good and is binding on us. As discussed the decision of the Hon'ble Delhi High\nCourt in Bharat Hotels Ltd. (supra) which was in favor of revenue has not considered the decision of\nthe Co-ordinate Division Bench decision in M/s Aimil Ltd.(supra) which is in favour of assessee. So\nwe note that later decision of the Delhi/Hyderabad Tribunal have followed the decision favouring\nassessee in the light of the Hon'ble Supreme Court decision in M/s Vegetable Products (supra). In\nthe light of the aforesaid decision and relying on the ratio of the Hon'ble Supreme Court in the case\nof Vatika Township Pvt. Ltd. (supra) and M/s Snowtex Investment Ltd. (supra) and also taking note\nof the binding decision of the Hon'ble Jurisdictional Calcutta High Court on this issue before us in\nShriVijayshree Ltd. Ltd.(supra), M/s Philips Carbon Black Ltd.(supra), M/s Coal India Ltd.(supra),\nM/s Akzo Nobel India Ltd. (supra), we set aside the impugned order of Ld CIT(A) and direct the AO\nto allow the claim of deduction in respect of employees contribution shares towards ESI, PF, by the\nassessee before the due date of filing of return u/s 139(1) of the Act. Therefore the appeal of assessee\nsucceeds and so, it is allowed in favour of assessee.\n                                                    9\n                                                                                              I.T.A. Nos. 383-384/Kol/2021\n                                                               Jayanta Food Products, Assessment Years: 2018-19 & 2019-20\n\n\n3.      In the light of the decision of this Tribunal on this issue, I am inclined to allow the\nappeal of the assessee subject to AO's verification that assessee has deposited\nemployees'/employers' contribution before the due date of filing of the return. Therefore, in\nthe light of the above judicial precedents (supra), the A.O. is directed to delete the addition\nprovided the assessee has deposited the employees'/ employer's contribution before the due\ndate of filing of the return. And it is held that the Amendment brought in Finance Act 2021\nw.e.f. 01.04.2021 by inserting an Explanation to section 36(1)(va) and section 43B of the Act\nis prospective in nature and would apply from AY 2021-22 onwards and, therefore, it is held\nthat the amendment is not applicable to these assessment years (Assessment Years 2018-19\nand 2019-20) under consideration.\n\n4.      In the result, both the appeals of the assessee are allowed for statistical purposes.\n\n                Order is pronounced in the open court on 16th February, 2022.\n\n                                                                                              Sd/-\n                                                                                  (A. T. Varkey)\n                                                                                 Judicial Member\n\n                                     Dated: 16th       February, 2022\nJD, Sr. PS\n\nCopy of the order forwarded to:\n\n     1. Appellant- M/s. Jayanta Food Products, P-180, C.I.T. Road, Scheme-VIM, Kolkata-\n        700 054.\n\n     2. Respondent - DCIT, CPC\n\n     3. The CIT(A)-National Faceless Appeal Centre (NFAC)\n     4. CIT-             , Kolkata\n     5. DR, Kolkata Benches, Kolkata (sent through e-mail)\n\n                                           True Copy\n\n                                                                                By Order\n\n\n                                                                      Assistant Registrar,\n                                                                ITAT, Kolkata Benches, Kolkata