Employer/employees/contribution towards PF before due date of filing of return U/s. 139(1) allowable

A.T.E. Pvt. Ltd. Vs ACIT (Bombay High Court)

In this case, admittedly, the payments have been made beyond the due date as prescribed in the relevant Act, under which the aforesaid payments have been made. However, it is also undisputed that the payments have been made before the due date for fling the return of income under section 139 of the Act. However, the Tribunal held that in view of the second proviso to section 43B as existing in the previous year relevant to the subject Assessment Year 1988-89, the appellant would be dis-entitled to claim beneft of section 43B of the Act in respect of the above payments.

However, with effect from 1st April, 2004 by the Finance Act, 2003 the second proviso to Section 43B of the Act, has been omitted. It is submitted that the above comission would operate retrospectively. Thus, entitling the appellate to its beneft.

Mr. Joshi, learned Counsel appearing in support of the appeal states that the issue of the deletion of the second proviso to Section 43B of the Act now stands concluded in favour of the appellant – assessee by the decision of the Supreme Court in the case of Commissioner of Income Tax Vs. Alom Extrusions Limited reported in (2009) 227 CTR (SC) 417 = (2009) 319 ITR 306 (SC). In the above case, the Court held that the Comission made by the Finance Act, 2003 by deletion of second proviso to section 43B of the Act would operate retrospectively from 1st April 1988 from the time it was frst introduced. Thus, in the absence of the second proviso to Section 43B of the Act, the only requirement of the statute is that the payment to the various funds should be made before the fling of the return of income under Section 139(1) of the Act as required by the frst proviso thereof. It is an undisputed position before us that this condition is satisfed in this case.

It must also be pointed out that so far as the payment of the employees’ contribution to P.F. is concerned, it would also be covered by the frst proviso to Section 43B of the Act. It has been so held by this Court in the case of CIT Vs. Ghatge Patil Transport Limited, 368 ITR 749 wherein this Court held that the Apex Court decision in the case of Alom Extrusions (supra) would apply.

Please become a Premium member. If you are already a Premium member, login here to access the full content.