2008 (8) TMI 304
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....on 139(1). The Assessing Officer disallowed the payment of provident fund and ESI contribution as the payments were made belatedly in terms of section 43B. Aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the Commissioner of Income-tax (Appeals), who partly allowed the appeal by directing the Assessing Officer to restrict the disallowance to Rs. 37,692 on the ground that they were paid within the grace period allowed under the statute. Aggrieved by that portion of the order of the Commissioner of Income-tax (Appeals), which went against the assessee, the assessee filed further appeal before the Tribunal. The Tribunal, following the decision of the Special Bench rendered in the case of Kwality Milk Foods L....
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....so omitted. The Legislature removed the differentiation between employee welfare payments and others. Uniform criteria was prescribed for the allowability of the claim. The amendment was made to eliminate unintended consequences that caused undue hardship to the taxpayers. Therefore, amendment in the proviso to section 43B by the Finance Act, 2003, was curative in nature. Accordingly, it should be applied retrospectively." 3. The Tribunal having noted that in the instant case the exact dates of payment of provident fund and ESI contribution specified in section 43B(b) of the Act are not available, set aside the order of the Commissioner of Income-tax (Appeals) and remitted the case back to the Assessing Officer with a direction to find out....
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....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. With the omission of the proviso the assessee is entitled to the deduction of payment made towards provident fund, etc., when such payment is actually made by the assessee on or before the due date applicable for filing the return, irrespective of whether such payment is made on or before the due date by which the assessee is required to credit the contribution to the employee's account in the relevant fund under the relevant Act. It is not permissible in law to take a liberal view or lenie....
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....9 ITR 212 and the Gauhati High Court has also taken note of the contrary decision of the Kerala High Court in the case of CIT v. South India Corporation Ltd. [2000] 242 ITR 114. After considering the same, the Gauhati High Court held that the contribution made towards provident fund, etc., after the close of the accounting period, but before the due date for filing return of income for the assessment year 1992-93 are entitled to deduction under section 43B(b) of the Income-tax Act, 1961. 6. This judgment of George Williamson reported in [2006] 284 ITR 619 (Gauhati) was taken on appeal by the Revenue by way of special leave petition to the Supreme Court. The Supreme Court in the case of CIT v. Vinay Cement Ltd. [2007] 213 CTR 268 ; [2009] 3....
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....s stated in the order are the finding recorded by the Supreme Court which would bind the parties thereto and also the court, Tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being 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." 8. Admittedly, the decision in Vinay Cement Ltd.'s case [2007] 213 CTR 268; [2009] 313 ITR (St.) 1 which has been extracted above, is a speaking order passed by the Supreme....