TMI Blog2017 (3) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal allowed. - ITA No. 2638/Mum/2016 - - - Dated:- 1-3-2017 - Shri Jason P. Boaz, Accountant Member and Shri Ram Lal Negi, Judicial Member For The Appellant : Shri Ashok J. Patil For The Respondent : Ms. Arju Garodia ORDER Per Jason P. Boaz, A.M. This appeal by the assessee is directed against the order of the CIT(A)- 24, Mumbai dated 25.01.2016 for A.Y. 2012-13. 2. The facts of the case, briefly stated, are as under: - 2.1 The assessee, a company engaged in construction work, filed its return of income for A.Y. 2012-13 on 22.09.2012 declaring total income of ₹ 15,80,66,050/-. The return was processed under section 143(1) of the Income Tax Act, 1961 (in short 'the Act') and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hindustan Organic Chemicals Ltd. ITXA 399/12 dated 27-06- 2014, but instead relied on the decision in the case of CIT v. Gujarat State Road Transport Corporation 366 ITR 170 (Guj.) 03. The Appellant craves leave to add amend or delete any of the grounds of appeal. 3.2 All these grounds (supra) pertain to the single issue of challenging the order of the learned CIT(A) in upholding the disallowance of ₹ 28,70,807/- made by the Assessing Officer (AO) on account of delayed payment of contribution to EPF in accordance with provisions of section 2(24)(x) r.w.s. 36(1) of the Act relying on the judgement of the Hon'ble Gujarat High Court in the case of CIT vs. Gujarat State Road Transport Corporation (366 ITR 170) (Guj). It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded bringing about uniformity in deduction claimed towards tax, duty, cess and fee on the one hand and contribution to EPF, superannuation fund and other welfare funds on the other. In coming to this finding the Hon'ble Bombay High Court applied the decision of the Hon'ble Apex Court in the case of CIT vs. Alom Extrusions Ltd. (2009) 319 ITR 306 (SC). 3.4.2 On similar facts as in the case on hand, we find that this issue of the assessee s claim for deduction of contribution to EPF under section 43B of the Act is squarely covered by the decision of the Hon'ble Bombay High Court in the case of CIT vs. Hindustan Organics Chemicals Ltd. (supra) wherein at paras 5 to 9 of its order, while dismissing Revenue s appeal, has held as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond proviso was further amended vide Finance Act 1989 with effect from 1st April 1989 which read as under:- Provided further that no deduction shall, in respect of any 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. 6. On a plain reading of the above provisos, it became ex-facie clear that the Assessees employers were entitled to deductions only if the contributions to any fund for the welfare of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09) 319 ITR 306 (SC) when the Supreme Court inter alia held that the amendments to the said section brought about by the Finance Act, 2003 with effect from 1st April 2004 were retrospective in nature and would operate from 1st April 1988. The ITAT, relying upon the aforesaid judgment of the Supreme Court, has dismissed the Revenue's Appeal and confirmed the order passed by the CIT (Appeals). In this view of the matter and in view of the fact that the Supreme Court has expressly held that the amendments to section 43B that were brought about by the Finance Act, 2003 are retrospective in nature, we find that the ITAT was fully justified in deleting the addition of ₹ 1,82,77,138/- on account of delayed payment of Provident Fund of em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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