2025:BHC-AS:38421-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1489 OF 2025 Vaibhav Maruti Dombale .. Petitioner Versus The Assistant Registrar, Income-tax Appellate Tribunal, Mumbai and Others .. Respondents WITH Digitally signed SMITA b R y A J S N M IK IT A A NT ORDINARY ORIGINAL CIVIL JURISDICTION RAJNIKANT JOSHI JOSHI Date:

2025.09.16

17:57:09 +0530 INCOME TAX APPEAL (L) NO.21746 OF 2025 Vaibhav Maruti Dombale .. Appellant Versus The Assistant Registrar, Income-tax Appellate Tribunal, Mumbai and Others .. Respondents Mr.Dharan Gandhi a/w Ms.Anchal Vyas, Advocate for the Appellant/Petitioner.

Mr.Vikas Khanchandani, Advocate for the Respondents.

CORAM: B. P. COLABAWALLA &

FIRDOSH P. POONIWALLA, JJ.

RESERVED ON: 12^th AUGUST, 2025 PRONOUNCED ON: 12^th SEPTEMBER, 2025.

JUDGEMENT: (PER FIRDOSH P. POONIWALLA, J.)

1. Writ Petition No.1489 of 2025 has been filed seeking quashing and setting aside of the Order dated 17^th September 2024 passed by the Income Tax Appellate Tribunal ‘B’ Bench, Pune (hereinafter referred to as the “ITAT”), in Miscellaneous Application No.225/Pune/2023, under Section 254(2) of the Income Tax Act, 1961 (hereinafter referred to as the “IT Act”) and the Order dated 17^th September 2024 passed by the ITAT under Section

254(1) of the I.T.Act in I.T.Appeal No.299/Pune/2021.

2. The IT Appeal (L) No.21746 of 2025 has been filed seeking setting aside of the Order dated 17^th September 2024 passed by the ITAT, under Section 254(1) of the IT Act, in I.T. Appeal No.299/Pune/2021.

WRIT PETITION NO.1489 OF 2025

3. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

4. Before we consider the issues involved in this Writ Petition, it would be appropriate to set out the relevant facts of the matter.

5. The Petitioner filed his return of income for the AY 2019-20 on

5^th October, 2019 declaring an income of Rs. 1,19,20,710/-.

6. The said return was processed and an intimation was issued to the Petitioner on 14^th May, 2020 u/s 143(1) of the IT Act. In the said intimation, interalia, an adjustment was made and a sum of Rs. 57,92,151/- was disallowed and added to the total income, being the amount received from the employees as contribution to any provident fund, superannuation fund etc. and not paid within the due dates prescribed u/s 36(1)(va) of the IT Act. This adjustment was made apparently u/s sub-sections (i), (ii) and (iv) of Section 143(1)(a). It is the case of the Petitioner that, prior to such adjustment, a proposal was sent and which was duly replied to. However, the reply was not taken into consideration while making the adjustment.

7. Be that as it may, aggrieved by the assessment order, the Petitioner filed an Appeal before the Commissioner of Income-tax Appeals, Pune ["CIT(A)"] on 20^th May, 2020. Before the CIT(A), the Petitioner made elaborate submissions in respect of the impugned addition. The Petitioner also relied upon the judgement of this Court, which had held that employees’ contribution to the funds, if paid before the due date of filing of return of income, would be allowed as a deduction.

8. The CIT(A) disposed of the appeal by an Order dated 22^nd June 2021. The CIT(A), on the basis of the amendment carried out in section 43B of the Act, by inserting Explanation 5 vide Finance Act, 2021 w.e.f. 1^st April, 2021, held that such amendment is retrospective in nature and therefore sustained the addition.

9. Aggrieved by the Order dated 22^nd June, 2021 of the CIT(A), the Petitioner filed an Appeal with the ITAT. The Petitioner raised a ground that sufficient opportunity of being heard was not provided by the CPC and the CIT(A) and that no reasoned order was passed. The Petitioner challenged the addition sustained and also the retrospective application of Explanation 5 to Section 43B of the Act by the CIT(A).

10. On 5^th September, 2022, the ITAT passed an Order u/s 254(1) of the Act, whereby it was held that the insertion of Explanation 5 to Section 43B of t