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TMI Blog2009 (4) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 5, 2003, the appeal disposed by way of remand - ITA No. 36 of 2005. - - - Dated:- 15-4-2009 - CHAUHAN B. S. DR., MAHAPATRA B. N. JJ D. Pati, S.R. Mishra, S.C. Panda, N.R. Mohanty and J.M. Pattnaik for the Appellant. JUDGMENT B. N. Mahapatra J.- This tax appeal under section 260A of the Income-tax Act, 1961 (hereinafter referred to as the "IT Act") has been filed raising the following questions of law : "(A) Whether in the facts and circumstances of the case the learned Tribunal is justified in sustaining the additions made under section 43B of the Act, for delay in deposit of Employees' Provident Fund contribution when the appellant has deposited the said contribution before the due date of submission of returns und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 43B of the Income-tax Act and also sustained the addition of Rs. 1,50,500 made on account of short-term capital gains. Hence, this appeal. 4. Mr. J. M. Pattnaik, learned counsel appearing on behalf of the appellant submits that section 43B of the Income-tax Act contemplates that certain deductions are to be allowed only on actual payment. It further provides that in the event the payment is made before the submission of returns in terms of section 139(1) of the Income-tax Act, the deduction shall also be allowed. The second proviso appended to the said section has been deleted with effect from April 1, 2004 with the object that if the payment is made during the assessment year or before the submission of returns under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in the relevant previous year. After the insertion of section 43B, even if the assessee had regularly adopted the mercantile system 6f accounting, the amount of tax payable by the assessee could be deducted only in the year in which the sum was actually paid and not in the year in which the assessee incurred the liability to pay that tax. However, an assessee who had collected sales tax in the last quarter of the accounting year and deposited it in the treasury within the statutory period falling in the next accounting year, was not entitled to claim any deduction for it. This was not intended by section 43B. To obviate this kind of unexpected outcome of section 43B, the first proviso was added in section 43B by the Finance Act of 1987. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Tribunal has also not considered in its order the Circular No. 7 of 2003 ([2003] 263 ITR (St.) 62), issued by the learned Central Board of Direct Taxes. 9. In view of the above, without expressing any opinion on the merits of the case, we remit the matter back to the learned Tribunal to adjudicate this issue keeping in view the judgment of the hon'ble Supreme Court in Allied Motors' case [1997] 224 ITR 677 and Circular No. 7 of 2003 dated September 5, 2003 ([2003] 263 ITR (St.) 62). 10. The second and third questions relate to addition made on account of short-term capital gains. The learned Tribunal has upheld the said addition taking into consideration various factual aspects like the dates on which the land was purc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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