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TMI Blog2015 (1) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was dismissed by the Tribunal. 4. In Tax Appeal Nos.651 of 2007, 652 of 2007 and 654 of 2007 the revenue has challenged the common order dated 11.08.2006, passed by the Tribunal in ITA Nos.1049/Ahd/2003, 1797/Ahd/2002, and 2503/Ahd/2003 whereby the appeals filed by the revenue were allowed only for the statistical purposes. 5. In Tax appeal No.706 of 2007, the revenue has challenged the order dated 08.09.2006 passed by the Tribunal in ITA No.2212/Ahd/2000, whereby the appeal preferred by the assessee was partly allowed by the Tribunal. 6. While admitting Tax Appeal Nos. 248 of 2007 and 251 of 2007, the Court had formulated the following substantial question of law:- "Whether the Appellate Tribunal is right in law and on facts in holding that proviso to section 43B instead by the Finance Act, 2003 was curative and retrospective in nature and thereby directing the Assessing Officer to verify the payment made to P.F. and ESI and to allow the same as per the amended provisions ?" 7. While admitting Tax Appeal Nos. 401 of 2007, the Court had formulated the following substantial question of law: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of the Employees' State Insurance Act, 1948, or any other fund for the welfare of such employees shall be treated as an "income". Under Section 36(1)(va), the assessee shall be entitled to the deduction in computing the income referred to in section 28 with respect to any sum received by the assessee from his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employees' accounts in the relevant fund or funds on or before the "due date". As per the Explanation to section 36(1)(va) for the purpose of clause (x), "due date" means the date by which the assessee is required as an employer to credit the employees' contribution to the employees account in the relevant fund under the Act, rule, order or notification issued thereunder or under any standing order, award, contract or service or otherwise. Section 43B is with respect to certain deductions only on actual payment. The deletion of the second proviso to Section 43B and the amendment in the first proviso to section 43B by the Finance Act, 2003, is required to be confined to section 43B alone and the deletion of the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice u/s. 143(2) the assessees have produced books of account. After considering the material on record, the assessment order came to be passed. Against the said order, an appeal before the CIT(A) has been preferred by the assessee which came to be allowed. Against the order of CIT(A), the Revenue has preferred an appeal before the ITAT is allowed,against which, the present Tax Appeals by the assessees before this Court. 4. Heard the learned advocates appearing for the parties and considered the submissions. The learned advocate for the appellant has contended that now the issue is covered by the decision of this Court in the case of Commissioner of Income-Tax, Ahmedabad III v. Riddhi Steel And Tubes Pvt. Ltd., reported in 40 taxmann.com. 177, and more particularly, para-9.1 and 9.2, which reads as under: 9.1 Again, the Court cannot be oblivious of the fact that the assessee had been subjected to statutory audit under the Companies Act, 1956 and also tax audit under the Income tax Act. No errors were found at any stage in the report submitted by these auditors and for the past eight years, the assessee had been following continuously/cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decision.(4) Mr. M. R. Bhatt, learned Senior Advocate appearing on behalf of the appellant, is not able to dispute the aforesaid position. In the circumstances, it is not necessary to set out the facts and contentions in detail. (5) The Supreme Court in the case of Commissioner of Income Tax Vs. Alom Extrusions Ltd. (supra) has observed that the omission of the second proviso to section 43B of the Income-tax Act, 1961, by the Finance Act, 2003, operated, retrospectively, with effect from April 1, 1988 and not prospectively from April 1, 2004. Earlier under the second proviso to section 43B as amended by the Finance Act, 1989, assessees were entitled to deduction only if the contribution stood credited on or before the due date given in the Provident Funds Act. This created further difficulties and on a representation made to the Finance Ministry one more amendment was made by the Finance Act, 2003. Though this amendment was made applicable with effect from April 1, 2004, the amendment was curative in nature and applied retrospectively with effect from April 1, 1988. When a proviso in a section is inserted to remedy unintended consequences and to make the section workable, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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