2008 (11) TMI 3

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....owability of deduction under Section 36(1)(5a) read with Section 2(24)(x) and Section 43(B) to the assessee in respect of employer/employees contributions towards provident fund payments which were made after the due date prescribed under the Employees Provident Fund Act and the Rules made thereunder before the due date for furnishing the return of income under sub-Section 1 of Section 139. 2. The Revenue being aggrieved by the impugned judgment on account of the fact that the Tribunal, based on its own decision in the case of ACIT v. M/s Vistas RRB (India) Ltd: (2005)92 ITD 1 Delhi, has taken the view that the amendment brought about in Section 43B by virtue of Finance Act, 2003 was curative in nature and hence applicable retrospectivel....

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.... aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) [hereinafter referred to in short as the "CIT(A)"]. The CIT(A) after considering the matter while accepting the view of the Assessing Officer on the interpretation of the relevant provisions of the Act on facts directed the deletion of an addition of Rs 4,83,251 being payments made towards provident fund in respect of December, 1997, January, 1998 and February, 1998 on the ground that they were within the time prescribed under the relevant provisions of the Act. As a result, the CIT(A) confirmed the addition to the income of the assessee only a sum of Rs 13,10,791/- as against Rs 17,94,042/-added by the Assessing Officer. 6. The assessee being aggrie....

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....uth India Corporation Ltd: (2000) 242 ITR 114. After noting the said judgment the fact that the amendments had been made to the provisions of Section 43B of the Act by virtue of Finance Act, 2003 w.e.f 1.4.2004 it agreed with the submission of the learned counsel for the assessee that by virtue of the omission of the second proviso and the omission of Clauses (a), (c), (d), (e) and (f) without any saving clause would mean that the provisions were never in existence. For this purpose, in the said case the assessee had placed reliance on the judgment of a Constitution Bench of the Supreme Court in the case of Kolhapur Canesugar Works Ltd v. Union of India: (2000) 2 SCC 536 and Rayala Corporation P. Ltd v. Director of Enforcement (1969) 2 SCC ....

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....ourt in Vinay Cement (supra) a Division Bench of this Court dismissed the appeals of the Revenue. In the passing we may also note that a Division Bench of the Madras High Court in the case of CIT v. Nexus Computer (P) Ltd by a judgment dated 18.8.08 passed in Tax Case (A) No. 1192/2008 discussed the impact of both the dismissal of the special leave petition in the case of George Williamson (Assam) Ltd (supra) and Vinay Cement (supra) as well as a contrary view of the Division Bench of its own Court in Synergy Financial Exchange (supra). The Division Bench of the Madras High Court has explained the effect of the dismissal of a special leave petition by a speaking order by relying upon the judgment of the Supreme Court in the case of Kunhayam....