TMI Blog2008 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant. Prakash Kumar, Advocate for the respondent. JUDGMENT The judgment of the court was delivered by RAJIV SHAKDHER, J. - 1. This is an appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to in short as the Act) against judgment dated 12.8.2005 in ITA No 1585/Del/2002 in respect of the assessment year 1998-99. The only issue which arises for consideration is the allowability of deduction under Section 36(1)(5a) read with Section 2(24)(x) and Section 43(B) to the assessee in respect of employer/employees contributions towards provident fund payments which were made after the due date prescribed under the Employees Provident Fund Act and the Rules made thereunder before the due date for fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of the details submitted by the assessee with respect to provident fund payments made both on account of employer's and employees share revealed that payments in the sum of Rs 17,94,042/- were late as per the provisions of Section 36(1)(5A) read with Section 2(24)(x) and Section 43B. Consequently, the Assessing Officer disallowed the deduction and added a sum of Rs 17,94,042/- towards EPF contribution. 5. Being aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) [hereinafter referred to in short as the "CIT(A)"]. The CIT(A) after considering the matter while accepting the view of the Assessing Officer on the interpretation of the relevant provisions of the Act on facts directed the deletion of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt by a speaking order, 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 (Gauhati) 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 v. South India Corporation 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 w.e.f 1.4.2004 it agreed with the submission of the learned counsel for the assessee that by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (supra). Applying the ratio of the decision of the Supreme Court in Vinay Cement (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 v. Nexus Computer (P) Ltd by a judgment dated 18.8.08 passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as res judicata in subsequent proceedings between the parties." 11. Upon noting the observations of the Supreme Court in Kunhayammed and Others (supra) the Division Bench of the Madras High Court in the case of Nexus Computer Pvt 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 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 Pvt Ltd (supra). Judicial discipline requires us to follow the view of the Supreme Court in Vinay Cement (supra) as also the view of the Division Bench of this Court in Dharmendra Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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