2002 (9) TMI 9

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....rpose of agitating it in an appeal under section 260A is as follows: "Whether, on a true and proper construction of the provisions of section 43B of the Income-tax Act, 1961, the Tribunal was justified in law in holding that the provident fund payments actually made during the previous year but beyond the due date would have to be disallowed under the said provisions?" In the impugned order ....

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....r claimable or permissible. The above provisions of the Income-tax Act are set out below: "43B. Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of... (b) any sum payable by the assessee as an employer by way of contribution of any provident fund . . . shall be allowed . . . only in ... that previous year i....

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....beyond their creation or control. We are of the opinion that if a constitutional question is to be raised about the vires of the further proviso, then it has to be done in some other court than the reference court. We are, however, quite convinced that the further proviso either survives as a whole or not at all and there is no scope for reading it down. If the word "shall" is turned into "may"....