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TMI Blog2014 (11) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in computing the income referred to in section 28 if such sum is not credited by the assessee to the employees' account in the relevant fund or funds on or before the due date as per explanation to section 36(1)(va) of the Act - By deleting Second Proviso to section 43B by Finance Act, 2003, it cannot be said that Section 36(1) (va) is amended and/or explanation below clause (va) of sub-section (1) of section 36 is deleted, which is with respect to employees' contribution – in favour of revenue. - TAX APPEAL NO. 680 of 2014 - - - Dated:- 14-10-2014 - MR. KS JHAVERI AND MR. K.J.THAKER, JJ. MR KM PARIKH, ADVOCATE FOR THE APPELLANT MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT ORAL ORDER (PER : HONOURABLE MR.JUSTIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income, then the same is allowable as an expenditure, without appreciating that the amendment in Section 40(a)(ia) made by the Finance Act, 2010 is applicable retrospectively from 01.04.2010 i.e. A.Y. 2010-11 and, therefore, its retrospective application could not have been extended prior to 01.04.2010 since for that period another retrospective amendment brought in by the Finance Act, 2008 w.e.f. 01.04.2005 was already applicable? (iii) Whether on the facts and circumstances of the case and in law, the ITAT was justified in upholding the deletion by the CIT(A) of disallowance of ₹ 19,39,017/- made by the Assessing Officer u/s 40(a)(ia) of the Income-tax Act, holding that if the TDS payment is made before the due date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ESIC of ₹ 43,88,453/relying on the decision of the Hon ble Supreme Court in the case of Alom Extrusions Ltd. reported in 319 ITR 306 (SC), without appreciating the fact that in the case of Alom Extrusions Ltd. the only controversy before the Hon ble Supreme Court was with respect to amendment (deletion) of the Second Proviso to Section 43B of the Income-tax Act, 1961 by the Finance Act, 2003 w.e.f. 01.04.2004 or whether it operates retrospectively w.e.f. 01.04.1989? (vi) Whether on the facts and circumstances of the case and in law, the ITAT was justified in upholding the deletion by the CIT(A) of disallowance of employees contribution towards P.F. and ESIC of ₹ 3,14,12,313/- and provision for employees contribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deposit the same in the relevant fund before the due date as prescribed as per respective law. Accordingly, the Assessing Officer had disallowed the sum of ₹ 3,14,12,313/under Section 2(24)(x) read with Section 36(1)(va). Similarly, the Assessing Officer had disallowed ₹ 43,88,453/on account of provision for employee s contribution towards PF and ESIC since the assessee had received the contribution from the employees but failed to deposit within the prescribed time limit. 2.2 Against the said disallowance made by the Assessing Officer, the assessee preferred appeal before the Commissioner of Income-tax (Appeals) who, following the decision of his predecessor in the assessee s own case for preceding year, allowed the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the TDS deducted has duly been paid within that period then the same is allowable as an expenditure. In view of these orders, we hereby hold that although the decision of MERILYN SHIPPING was followed by ld. CIT(A) is no more good law but otherwise the issue now stood covered in favour of the assessee as per the case law cited (supra) . In view of above, the Revenue is in appeal before this Court. 3. So far as question Nos. (i) to (iii) are concerned, this Court vide order dated 11.8.2014 has held the said questions against the Revenue and in favour of the assessee and the appeal qua the same was dismissed. Therefore, we are concerned with question Nos. (iv) to 2(vi) in the present case. 4. Learned advocate for the appellant Mr. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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