TMI Blog2008 (8) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Narayanaswamy for the appellant. JUDGMENT The judgment of the court was delivered by K. RAVIRAJA PANDIAN J. - The Revenue is on appeal against the order of the Tribunal dated April 28, 2006, made in I. T. A. No. 719/Mad./2004. The relevant assessment year is 2000-01. 2. The assessee-company is engaged in the business of manufacture and trading in computer system. For the assessment year 2000-01, the company filed its return of income under section 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 (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various reasons like postal delay, strikes or long holidays, the payment of employer's contributions to the respective authorities at times got delayed even though the payment was tendered before the due date. Having regard to this unintended hardship, by the Finance Act, 2003, in the first proviso to section 43B the words, brackets and letters referred to in clause (a) or clause (c) or clause (d) or clause (e) or clause (f) have been omitted and the second proviso was also 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be construed so as to have larger retrospective operation than its language renders necessary. The Division Bench also held that the second proviso to section 43B of the Income-tax Act, 1961, as it stood prior to its omission by the Finance Act, 2003, with effect from April 1, 2004, imposed a condition that no deduction shall, in respect of any sum referred to in clause (b) of the section 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. With t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion raised in the appeal is covered by the decision of the Gauhati High Court in the case of CIT v. Assam Tribune [2002] 253 ITR 93 wherein it was held that the contributions towards provident fund, etc., paid before the filing of the return by the assessee are entitled to the deduction. That decision in the case of CIT v. Assam Tribune [2002] 253 ITR 93 was rendered by that court based on the earlier decision of that court in the case of CIT v. Bharat Bamboo and Timber Suppliers [1996] 219 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayammed v. State of Kerala [2000] 245 ITR 360; [2000] 119 STC 505. The proposition has been summed up by the Supreme Court. The fifth proposition of law reads as follows (page 382) : "If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of article 141 of the Constitution. Secondly, other than the declaration of law, whatever is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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