TMI Blog2011 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(1) clause (va) of the Act, even prior to the insertion of that clause the assessee is entitled to get statutory benefit of deduction of payment of tax from the Revenue - Accordingly the appeal of the revenue is dismissed - I.T.A No. 1091/Kol/2010 - - - Dated:- 28-4-2011 - Sri Mahavir Singh, Shri Akber Basha, JJ. For the Appellant: Shri A. K. Pramanik ORDER Per Shri Mahavir Singh This appeal by revenue is arising out of the order of CIT(A), Central-1, Kolkata in Appeal No. 427/CC-VII/CIT(A), C-1/08-09 dated 10.03.2010. The assessment was framed by DCIT, CC-VII, Kolkata, u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Year 2006-07 vide his order dated 31.12.2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at to ESI of Rs.14,62,739/- are added back to the total income of the assessee. Aggrieved, assessee preferred appeal before CIT(A) and CIT(A) deleted the addition by considering the decision of Hon ble Karnataka High Court in the case of CIT Vs. Sabari Enterprises (2008) 298 ITR 141 (Karn.) and of Hon ble Apex Court in the case of CIT Vs. Alom Extrusions Ltd. (2009) 319 ITR 306 (SC). Aggrieved, now revenue is in appeal before us. 4. Before us, Ld. Sr. DR argued that the Coordinate Bench in the case of DCIT Vs. M/s. Ashika Stock Broking Ltd., ITA No.1255/K/2010, A.Y. 2007-08 dated 19.11.2010 has considered the issue of Employees Contribution towards ESI PF and held the same in favour of the revenue. He argued that this Coordinate ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowed the deduction and added a sum of Rs.17,94,042 towards EPF contribution. And subsequently decide this issue in para-10 to 14 of Hon'ble Delhi High Court, which read as under:- 10. In view of the above, it is quite evident that the special leave petition was dismissed by a speaking order and while doing so the Supreme Court had noticed the fact that the matter in appeal before it pertains to a period prior to the amendment brought about in s. 43B of the Act. The aforesaid position as regards the state of the law for a period prior to the amendment to s. 43B has been noticed by a Division Bench of this Court in Dharmendra Sharma (supra). Applying the ratio of the decision of the Supreme Court in Vinay Cement (supra) a Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the apex Court of the country. But, this does not amount to saying that the order of the Court. Tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. 11. Upon noting the observations of the Supreme Court in Kunhayammed Ors. (supra) the Division Bench of the Madras High Court in the case of Nexus Computer (P) Ltd. (supra) came to the conclusion that the view taken by the Supreme Court in Vinay Cement (supra) would bind the High Court as it was law declared by the Supreme Court under Art. 141 of the Constitution. 12. We are in respectful agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibution to the employees account in the relevant fund under any Act, rule or order or notification issued thereunder or under any standing order, award, contract of service or otherwise. Prior to the above clause was inserted to section 36 giving statutory deductions of payment of tax under the provisions of the Act, section 43B(b) was inserted by the Finance Act, 1983, which came into force with effect from April 1, 1984. Therefore, again the provision of section 43B(b) clearly provides that notwithstanding anything contained in the other provisions of the Act including section 36(1) clause (va) of the Act, even prior to the insertion of that clause the assessee is entitled to get statutory benefit of deduction of payment of tax from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proviso to section 43B of the Income-tax Act by the Finance Act, 2003, which provision has come into force, with effect from April 1, 2004. The reliance placed upon the decision of the apex court in Allied Motors P. Ltd. v. CIT [1997] 224 ITR 677 and also on the decision in General Finance Co. v. CIT (Asst.) [2002] 257 ITR 338 (SC) in respect of applicability of section 43B(b) and also omission of clause (a) or (c) or (d) or (e) or (f) referred to above occurred in the first proviso to section 43B, supports the case of the assessees and also relevant paragraphs extracted from Allied Motor s case [1997] 224 ITR 677 and paragraph 59 referred to supra in this judgment from the Finance Bill with all fours supports the case of the assessee/ r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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