TaxTMI 
TaxTMI 
2009 (11) TMI 27
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....o.7760/2009 @ S.L.P. (C) No.3759/2009, Civil Appeal No.7754/2009 @ S.L.P. (C) No.21067/2009, Civil Appeal No.7759/2009 @ S.L.P. (C) No.25174/2009, Civil Appeal No.7768/2009 @ S.L.P. (C) No.30587/2008 and Civil Appeal No.7761/2009 @ S.L.P. (C) No.1476/2009. J U D G M E N T S.H. KAPADIAJ. Civil Appeal No.7771/2009 @ S.L.P. (C) No.23851/2007, Civil Appeal No.7770/2009 @ S.L.P. (C) No.17835/2008, Civil Appeal No.7765/2009 @ S.L.P. (C) No.28521/2008, Civil Appeal No.7769/2009 @ S.L.P. (C) No.6844/2008, Civil Appeal No.7767/2009 @ S.L.P. (C) No.9589/2008, Civil Appeal No.7756/2009 @ S.L.P. (C) No.9590/2008, Civil Appeal No.7766/2009 @ S.L.P. (C) No.9591/2008, Civil Appeal No.7763/2009 @ S.L.P. (C) No.14363/2008, Civil Appeal No.7764/2009 @ S.L.P. (C) No.17840/2008, Civil Appeal No.7758/2009 @ S.L.P. (C) No.20012/2009, Civil Appeal No.7762/2009 @ S.L.P. (C) No.1344/2009, Civil Appeal No.7760/2009 @ S.L.P. (C) No.3759/2009, Civil Appeal No.7754/2009 @ S.L.P. (C) No.21067/2009, Civil Appeal No.7....
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....the Act read as under: "Provided that nothing contained in this section shall apply in relation to any sum referred to in clause (a) or clause (c) or clause (d) or clause (e) or clause (f), which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return. Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid in cash or by issue of a cheque or draft or by any other mode on or before the due date as defined in the Explanation below clause (va) of sub-section (1) of section 36, and where such payment has been made otherwise than in cash, the sum has been realized within fifteen days from the due date." By Finance Act, 2003, the second proviso to Section 43-B of the Act not only got deleted but the said Finance Act, 2003, also amended the first proviso with effect from Assessment Year 2004-2005. We quote herein below t....
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....d between 1st April, 1984, and 1st April, 1988, when the Parliament amended Section 43-B and inserted first proviso to Section 43-B. By this first proviso, it was, inter alia, laid down, in the context of any sum payable by the assessee(s) by way of tax, duty, cess or fee, that if an assessee(s) pays such tax, duty, cess or fee even after the closing of the accounting year but before the date of filing of the Return of income under Section 139(1) of the Act, the assessee(s) would be entitled to deduction under Section 43-B on actual payment basis and such deduction would be admissible for the accounting year. This proviso, however, did not apply to the contribution made by the assessee(s) to the labour welfare funds. To this effect, first proviso stood introduced with effect from 1st April, 1988. Vide Finance Act, 1988, the second proviso came to be inserted. It reads as follows: "Provided further that no deduction shall, in respect of any sum referred to in clause (b), be allowed unless such sum has actually been paid during the previous year on or before the due date as defined in the Explanation below clause (va) of sub-section (1) of section 36." At this s....
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....ce Act, 2003, was curative in nature, it was not amendatory and, therefore, it applied retrospectively from 1st April, 1988, whereas the argument of the Department was that Finance Act, 2003, was amendatory and it applied prospectively, particularly when the Parliament had expressly made the Finance Act, 2003, applicable only with effect from 1^st April, 2004. It was also argued on behalf of the Department that even between 1st April, 1988, and 1st April, 2004, Parliament had maintained a clear dichotomy between payment of tax, duty, cess or fee on one hand and payment of contributions to the welfare funds on the other. According to the Department, that dichotomy continued upto 1st April, 2004, hence, looking to this aspect, the Parliament consciously kept that dichotomy alive upto 1^st April, 2004, by making Finance Act, 2003, come into force only with effect from 1st April, 2004. Hence, according to the Department, Finance Act, 2003 should be read as amendatory and not as curative [retrospective] with effect from 1st April, 1988. We find no merit in these civil appeals filed by the Department for the following reasons: firstly, as stated above, Section 43-B [main section], whi....
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....end of the relevant previous year but within the time allowed under the relevant Sales Tax law should be disallowed under Section 43-B of the Act while computing the business income of the previous year? That was a case which related to Assessment Year 1984-1985. The relevant accounting period ended on June 30, 1983. The Income Tax Officer disallowed the deduction claimed by the assessee, which was on account of sales tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under Section 43-B which, as stated above, was inserted with effect from 1st April, 1984. It is also relevant to note that the first proviso which came into force with effect from 1st April, 1988 was not on the statute book when the assessments were made in the case of Allied Motors (P) Limited (supra). However, the assessee contended that even though the first proviso came to be inserted with effect from 1st April, 1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1st April, 1984, when Section 43-B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Limited (supra). This Court, ....