TMI Blog2011 (6) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in deleting the addition made on account of employees share of provident fund as the said payment has not been made before the due date as provided in explanation blow the provision of clause (Va) of sub-section (1) of section 36 of the Income tax Act, 1961. 2. The learned CIT(A) has erred himself to hold that the employees share of provident fund is allowable within the provision of section 43B of the Income tax Act, 1961 which is in contravention of the provision of section 36(1)(Va) of the Income tax Act. 3. The learned CIT(A) has erred in holding that due date as mentioned in section 36(1)(Va) is the date as defined/mentioned u/s.139(1) of Income tax Act, 1961 when the same has been defined in explanation below sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration and allowed the claim of the assessee and hence the Revenue has filed these appeals before the Tribunal. Against the consolidated order of the CIT(A), Bhatinda dated 19-8-2009. 5. We have heard the rival submissions. We find that both the issues raised in this appeal are squarely covered in favour of the assessee and against the Revenue by the decision of Hon ble High Court of Delhi in the case of CIT Vs. P.M. Electronic Ltd. (2009) 177 Taxman 1 (Delhi). In the said case, on examination of the details submitted by the assessee with respect to provident fund payment made both on account of employer and employees share revealed that payments in a sum of ₹ 17,94,042/- were made as per the provisions of section 36(1)(va) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the submission of the learned counsel for the revenue has to be rejected at the very threshold. The reason for the same is as follows:- 9. The Gauhati High Court in the case of CIT v. George Williamson (Assam) Ltd. (2006) 284 ITR 619 dealt with the very same issue. In the said judgment the Division Bench of the Gauhati High Court noted a contrary view taken by the Kerala High Court in the case of CIT Vs. South India Corpn. Ltd. (2000) 242 ITR 114. After noting the said judgment the fact that the amendments had been made to the provisions of section 43B of the Act by virtue of Finance Act, 2003 with effect from 1-4-2004 it agreed with the submission of the learned counsel of the assessee that by virtue of the omission of the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as dismissed by a speaking order and while doing so the Supreme Court had noticed the fact that the matter in appeal before it pertain to a period prior to the amendment brought about in section 43B of the Act. The aforesaid position as regards the state of the law for a period prior to the amendment to section 43B has been noticed by a Division Bench of this Court in Dharmendra Sharma s case (supra).Applying the ratio of the decision of the Supreme Court in Vinay Cement Ltd. s (supra) a Division Bench of this Court dismissed the appeals of the revenue. In the passing we may also note that a Division Bench of the Madras High Court in the case of CIT Vs. Nexus Computer (P.) Ltd. by a judgment dated 18-8-2008 passed in Tax-Case (A) No.1192 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order binding as res judicata in subsequent proceedings between the parties. 11. Upon noting the observations of the Supreme Court in Kunhayanmmed s case (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 Ltd. s case (supra) would bind the High Court as it was non-declared by the Supreme Court under article 141 of the Constitution. 12. We are in respectful agreement with the reasoning of the Madras High Court in Nexus Computer (P.) Ltd. s case (supra). Judicial discipline requires us to follow the view of the Supreme Court in Vinay Cement Ltd. s case (supra) as also the view of the Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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