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TMI Blog2023 (7) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the employees contribution to P.F. was deposited after the due date prescribed under the relevant statute. Thus, respectfully following the aforesaid decision of Checkmate Services Pvt. Ltd. [ 2022 (10) TMI 617 - SUPREME COURT ] the grounds raised by the assessee in its appeal are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 36(1)(va) r/w section 2(24) of the Act. While deciding the aforesaid issue, the Co-ordinate Bench of the Tribunal following its earlier decision rendered in Kalpesh Synthetics Pvt. Ltd. (supra) allowed the appeal filed by the assessee. Subsequently, the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. (supra) held that payment towards employee's contribution to P.F. / E.S.I.C. after the due date prescribed under the relevant statute is not allowable as a deduction under section 36(1)(va) of the Act. On the basis of this decision rendered by the Hon'ble Supreme Court, the Revenue has preferred the present M.A. under section 254(2) of the Act. 5. We find that the Hon'ble Supreme Court in ACIT v/s Saurashtra Kutch S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43. Salmond in his well-known work states: ". . . (T)he theory of case law is that a judge does not make law; he merely declares it, and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicataor accounts that have been settled in the meantime." [Emphasis supplied] 44. It is no doubt true that after a historic decision in Golak Nath v. State of Punjab AIR 1967 SC 1643, this Court has accepted the doctrine of 'prospective overruling'. It is based on the philosophy: &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court operates retrospectively. 8. Therefore, respectfully following the aforesaid judicial pronouncements, we find merit in the present M.A. filed by the Revenue seeking recall of the Tribunal's order on the basis of the subsequent decision of the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. (supra). Accordingly, the order dated 25/05/2022, passed by the Co-ordinate Bench of the Tribunal in assessee's appeal for the assessment year 2019-20 is hereby recalled. ITA no. 400/Mum./2022 Assessee's Appeal - A.Y. 2019-20 9. With the consent of the learned D.R., the corresponding appeal being ITA no. 400/Mum./2022, was taken up for hearing. We find that the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it or deducted by it from the employee's income, unless the condition that it is deposited on or before the due date, is correct and justified. The non-obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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