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TMI Blog1999 (10) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... the disallowance of provident fund payments right and in accordance with law ?" The factual position necessary to be noted for adjudication of the question is essentially as follows : In the assessment for the assessment year 1991-92, the Assessing Officer disallowed the following payments made towards provident fund under section 43B of the Act : Rs. "P. F. relating to the previous year relevant to the assessment year 1990-91 disallowed in that year and claimed in this year 39,338 on the basis of payment made on May 5, 1990 P. F. relating to this year not paid on due dates 4,68,808". The provident fund payments have to be made by the 15th of the succeeding month. A grace period of five days was also given without payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deduction should be allowed in the year in which the amount was paid irrespective of the fact whether it became payable in the earlier year or not. There was no warrant to make a dichotomy between the payments made to the authorities within the grace time and beyond the grace period. Further, the computation of income takes place only for the year as a whole and not at intermediary stages and, therefore, what is to be seen is whether the payment has been made within the previous year and if so, irrespective of the fact whether there was any default in keeping to the schedule of payments for each month, no disallowance can be made in terms of the main provisions of section 43B of the Act. Lastly, the Tribunal held that the second proviso c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 realised within fifteen days from the due date. Explanation.---For the removal of doubts, it is hereby declared that where a deduction in respect of any sum referred to in clause (a) or clause (b) of this section is allowed in computing the income referred to in section 28 of the previous year (being a previous year relevant to the assessment year commencing on the 1st day of April, 1983, or any earlier assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l presumption is that, but for the proviso the enacting part of the section would have included the subject-matter of the proviso." (see Mullins v. Treasurer of the County of Surrey [1880] 5 QBD 170, at page 173). In the words of Lord Macmillan, "the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." (see Madras and Southern Mahratta Rly. Co. Ltd. v. Bezwada Municipality, AIR 1944 PC 71, 73). It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate (see Local Govt. Board v. South Stoneham Union [1909] AC 57 (HL)). As a general rule, a proviso is added to an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of section 36, it shall be deemed as if the payment was made within the due date. The expression "due date" means the time stipulated for payment. As per the Explanation to clause (va) for the purpose of the clause, "due date" means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund. The amount is deductible only if the assessee credits the amount to the employee's account in the relevant fund on or before the date by which he is legally or contractually required to do so. The right to deduction would be lost even if the sum is credited after the due date. It cannot be an indefinite date left to the choice of the assessee. It is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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