The ACIT, Vapi Circle, Vapi V. M/s. Harish Tex-Mach Pvt.Ltd., Umbergam

ITA 820/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73155 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 28-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 15-03-2011
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: URVASHI SHODHAN A R
• Keywords: Period of limitation; Deemed to accrue or arise in india; Tax effect
• Section: 43B; 28; 139

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD . .. . . . . . , , , , ! '# ! '# ! '# ! '#, , , , $ $ $ $ BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO. 819/AHD/2011 ASSESSMENT YEAR 2006-07 ASST. COMMISSIONER OF INCOME TAX, VAPI CIRCLE, VAPI VS HARISH TEX-MACH PRIVATE LTD. PLOT NO. 1506, GIDC, UMBERGAON. PAN: AAACH7519L (APPELLANT) (RESPONDENT) ITA NO. 820/AHD/2011 ASSESSMENT YEAR 2007-08 ASST. COMMISSIONER OF INCOME TAX, VAPI CIRCLE, VAPI VS HARISH TEX-MACH PRIVATE LTD. PLOT NO. 1506, GIDC, UMBERGAON. PAN: AAACH7519L (APPELLANT) (RESPONDENT) REVENUE BY : SH. P.L. KUREEL, SR. D.R. ASSESSEE(S) BY : MS. URVASHI SHODHAN, AR !% & #'/ // / DATE OF HEARING : 28/03/2014 )*+ & #' / DATE OF PRONOUNCEMENT : 31/03/2014 , , , ,/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE CONSOLIDATED ORDERS OF THE CIT(A) DATED 14.12.2010 FOR ASSESSMENT YEARS 2006-07 & 2007-08. ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 2 - 2. THE ONLY GROUND OF APPEAL FOR ASSESSMENT YEAR 2 006-07 AND GROUND NO. 1 OF THE APPEAL FOR ASSESSMENT YEAR 2007-08 OF THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A ) DELETING THE DISALLOWANCE OF RS 40,39,639/- IN ASSESSMENT YEAR 2 006-07 AND RS. 5,11,160/- IN THE ASSESSMENT YEAR 2007-08 MADE ON ACCOUNT OF UNPROVED CREDITORS. THE UNDISPUTED FACTS OF THE CA SE ARE THAT THE ASSESSING OFFICER MADE ADDITION OF RS 40,39,368/- I N ASSESSMENT YEAR 2006-07 AND RS 5,11,160/- IN ASSESSMENT YEAR 2 007-08 ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FILE THE CONFIRMATION OF THE CREDITORS AND THAT THE ASSESSEE HAS NOT PRODUCE D THE CREDITORS BEFORE HIM. 3. ON APPEAL, THE LD. CIT(A) DELETED THE DISALLOWA NCE BY OBSERVING AS UNDER: 6.5 DECISIONS ;- I HAVE CONSIDERED THE FACTS OF THE CASE CAREFULLY. ALSO CAREFULLY CONSIDERED THE FINDI NG OF THE AO IN ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE ID. AR. THE AO MADE THE ADDITION BECAUSE THE CREDIT BAL ANCES ARE SHOWN IN THE ACCOUNTS FOR MORE THAN 3 YEARS AND THEREFORE LIABLE TO BE TREATED AS DEEMED INCOME U/S 41(1) OF I.T. ACT. NO OTHER FINDINGS WERE GIVEN BY THE AO. O N THE OTHER HAND THE ID. AR MADE THE ELABORATE SUBMISSION S WITH CERTAIN CASE LAWS IN SUPPORT OF HIS ARGUMENTS. WHAT IS THE MANDATE OF PROVISIONS 11/5.41(1) ': OF THE ACT? SEC .4L(L) IS A MACHINERY SECTION AND NOT A CHARGING PROVISION AND HENCE NOT REQUIRED TO CONSTRUED STRICTLY BUT IN SUCH A MA NNER AS TO MAKE THE LEVY OF TAX EFFECTIVE AND TO MAKE THE MACH INERY OF ASSESSMENT WORKABLE AS HELD BY HON'BLE GUJARAT HC I N THE CASE OF MOTILAL AMBIDAS VS. C1T 108 ITII 136 (GUJ.) . SEC. 41(1) CAN BE INVOKED ONLY IF THE CONCERNED LIABILIT Y OF THE ASSESSEE I HAS CEASED FINALLY AND THERE IS NO POSSI BILITY OF ITS REVIVAL IN FUTURE. THE CESSATION OF LIABILITY ARISE S ONLY WHEN SUCH LIABILITY CEASES TO EXIST IN THE EYE OF LAW FO R ALL INTENTS AND PURPOSES. IN THE CASE OF TAMIL NADU WARE HOUSIN G CORPORATION VS. CIT 292 ITR 310 (MAD.) THE HON'BLE HC HELD THAT 'AN AMOUNT REPRESENTING AS LIABILITY WAS BEING SHOWN FOR YEARS AFTER YEAR. UNLESS AND UNTIL THERE IS CES SATION OF THE SAID LIABILITY SEC.41 (1) WAS NOT APPLICABLE. SINCE THERE WAS NO EVIDENCE OF CESSATION OF LIABILITY, AMOUNT WAS H ELD NOT ASSESSABLE AS INCOME U/S. 41(1) OF THE ACT.' FURTHE R IN THE ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 3 - CASE OF SUGAULI SUGAR WORKS VS. CIT 236 ITR 518 (SC ), THE HON'BLE SC HELD THAT ' THE QUESTION WHETHER THE LIA BILITY IS ACTUALLY BARRED BY LIMITATION IS NOT A MATTER WHICH CAN BE DECIDED BY CONSIDERING ASSESSEE'S CASE ALONE BUT IT IS A MATTER WHICH HAS TO BE DECIDED ONLY IF THE CREDITOR S IS BEFORE THE CONCERNED AUTHORITY. IN THE ABSENCE OF THE CRED ITORS IT IS NOT POSSIBLE FOR THE AUTHORITY TO COME TO THE CONCL USION THAT THE DEBTS IS BARRED AND HAS BECOME UNENFORCEABLE. T HERE MAY BE CIRCUMSTANCES, WHICH MAY ENABLE THE CREDITOR S TO COME WITH A PROCEEDING FOR ENFORCEMENT OF THE DEBTS EVEN AFTER EXPIRY OF THE NORMAL PERIOD OF LIMITATION AS PROVIDED BY THE LIMITATION ACT.' IN THE INSTANT CASE THE AO HAS NOT BROUGHT ON RECORD ANY FURTHER EVIDENCE FOR COMING T O THE CONCLUSION THAT THE LIABILITY IS RIPE FOR CESSATION . ON THE OTHER HAND THE ID. AR HAD NARRATED THE GENESIS AND THE RE ASONS FOR SUCH OUTSTANDING. SOMETIMES FAMILY DISPUTES IN DIVISION OF ASSESTS TAKE MANY YEARS. IN THIS CIRCUMSTANCES A ND CONSIDERING THE JUDICIAL PRONOUNCEMENTS FAVORING TH E APPELLANT, I DIRECT THE AO TO DELETE THE ADDITIONS BECAUSE SUCH ADDITION CANNOT SUSTAIN IN THE EYE OF LAW. THE SE GROUNDS OF APPEAL ARE ALLOWED. 4. THE LD. DR VERY FAIRLY CONCEDED THAT THE ISSUE IS COVERED AGAINST THE REVENUE AND IN FAVOUR OF THE AS SESSEE BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF CIT VS. NITIN S. GARG (2012) 22 TAXMANN.COM 59 (GUJ.). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER MADE ADDITION OF RS 40,39,368/- IN ASSESSMENT YEAR 2006- 07 AND RS 5,11,160/- IN ASSESSMENT YEAR 2007-08 ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FILE THE CONFIRMATION OF THE CREDITORS AND THAT THE ASSESSEE HAS NOT PRODUCED THE CREDITORS BEFORE HIM. 6. THE LD. CIT(A) DELETED THE ADDITION FOR THE REA SONS QUOTED ABOVE IN HIS ORDER. THE LD. DR HAS CONCEDED THAT THE ISSUE IS COVERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF NITIN S. ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 4 - GARG (SUPRA). WE FIND THAT THE HONBLE GUJARAT HIG H COURT IN THAT CASE HAS HELD AS UNDER: 15. IN THE CASE BEFORE US, IT IS NOT BEEN ESTABLISHED T HAT THE ASSESSEE HAS WRITTEN OFF THE OUTSTANDING LIABILITIE S IN THE BOOKS OF ACCOUNT. THE APPELLATE TRIBUNAL IS JUSTIFIED IN TAK ING THE VIEW THAT AS ASSESSEE HAD CONTINUED TO SHOW THE ADMITTED AMOU NTS AS LIABILITIES IN ITS BALANCE SHEET THE SAME CANNOT BE TREATED AS ASSESSMENT OF LIABILITIES. MERELY BECAUSE THE LIABI LITIES ARE OUTSTANDING FOR LAST MANY YEARS, IT CANNOT BE INFER RED THAT THE SAID LIABILITIES HAVE SEIZED TO EXIST. THE APPELLATE TRI BUNAL HAS RIGHTLY OBSERVED THAT THE ASSESSING OFFICER SHALL HAVE TO P ROVE THAT THE ASSESSEE HAS OBTAINED THE BENEFITS IN RESPECT OF SU CH TRADING LIABILITIES BY WAY OF REMISSION OR CESSATION THEREO F WHICH IS NOT THE CASE BEFORE US. MERELY BECAUSE THE ASSESSEE OBTAINE D BENEFIT OF REDUCTION IN THE EARLIER YEARS AND BALANCE IS CARRI ED FORWARD IN THE SUBSEQUENT YEAR, IT WOULD NOT PROVE THAT THE TRADIN G LIABILITIES OF THE ASSESSEE HAVE BECOME NON EXISTENT. 16. MOREOVER, AS POINTED OUT IN THE CASE OF SUGAULI SUG AR W ORKS (P.) LTD. (SUPRA), VIDE THE LAST FIVE LINES OF THE PARAGRAPH-6 OF THE JUDGEMENT, THE QUESTION WHETHER THE LIABILITY IS AC TUALLY BARRED BY LIMITATION IS NOT A MATTER WHICH CAN BE DECIDED BY CONSIDERING THE ASSESSEE'S CASE ALONE BUT HAS TO BE DECIDED ONLY IF THE CREDITOR IS BEFORE THE CONCERNED AUTHORITY. IN THE ABSENCE OF T HE CREDITOR, IT IS NOT POSSIBLE FOR THE AUTHORITY TO COME TO A CONCLUS ION THAT THE DEBT IS BARRED AND HAS BECOME UNENFORCEABLE. THERE MAY B E CIRCUMSTANCES WHICH MAY ENABLE THE CREDITOR TO COME WITH A PROCEEDING FOR ENFORCEMENT OF THE DEBT EVEN AFTER E XPIRY OF THE NORMAL PERIOD OF LIMITATION AS PROVIDED IN THE LIMI TATION ACT. 17. WE, THUS, FIND THAT THE VIEWS TAKEN BY THE TRIBUNAL IS ABSOLUTELY CONSISTENT WITH THE ONES TAKEN BY THE SU PREME COURT IN THE CASE OF SUGAULI SUGAR WORKS (P.) LTD. (SUPRA) A ND OTHER DECISIONS WHICH HAVE BEEN REFERRED TO IN THE JUDGME NT. WE DO NOT FIND ANY ERROR MUCH LESS AN ERROR OF LAW IN THE JUD GMENT AND ORDER OF THE TRIBUNAL. THEREFORE, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 7. THE ONLY OTHER GROUND TAKEN BY THE REVENUE IN I TS APPEAL FOR ASSESSMENT YEAR 2007-08 IS THAT THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS 13,625/- ON ACCOUNT OF BELATED PAYMENT OF PF IN RESPECT OF EMPLOYEES CONTRIBUTION WITHOUT ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 5 - CONSIDERING THE FACT THAT THE ASSESSEE MADE SUCH PA YMENTS INTO THE GOVERNMENT ACCOUNT BEYOND THE DUE DATE PRESCRIBED I N THE RELEVANT ACT. 8. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS ING OFFICER OBSERVED THAT THE ASSESSEE HAD MADE PAYMENT OF PF I N RESPECT OF EMPLOYEES CONTRIBUTION BEYOND THE TIME ALLOWED IN THE RELEVANT ACT I.E. 15/20 TH OF THE NEXT MONTH IN RESPECT OF THE FOLLOWING PAYM ENTS: S.NO. MONTH AMOUNT OF PF DUE DATE INCLUDING GRACE PERIOD OF 5 DAYS DATE OF PAYMENT 1. JUNE 2006 13,625 15/20.07.06 21.07.06 13,625 9. ON APPEAL, THE LD. CIT(A) ALLOWED THE DEDUCTION TO THE ASSESSEE BY FOLLOWING THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS 319 ITR 306 (SC). 10. THE LD. AR OF THE ASSESSEE VERY FAIRLY CONCEDE D THAT THIS ISSUE IS NOW DECIDED BY THE HONBLE GUJARAT HI GH COURT AGAINST THE ASSESSEE IN THE CASE OF GUJARAT STATE ROAD TRAN SPORT CORPORATION (2014) 41 TAXMANN.COM 100 (GUJ.). WE F IND THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT S TATE ROAD TRANSPORT CORPORATION (SUPRA) HELD AS UNDER: 7.1 SHORT QUESTION WHICH IS POSED FOR CONSIDERATION OF THIS COURT IS WITH RESPECT TO THE DISALLOWANCE OF THE AMOUNT B EING EMPLOYEES' CONTRIBUTION TO PF ACCOUNT / ESI CONTRIBUTION WHICH ADMITTEDLY WHICH THE CONCERNED ASSESSEE DID NOT DEPOSIT WITH T HE PF DEPARTMENT / DSI DEPARTMENT WITHIN DUE DATE UNDER T HE PF ACT AND/OR ESI ACT. ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 6 - 7.2 TO ANSWER THE ABOVE CONTROVERSY, THE RELEVANT PROV ISIONS OF INCOME TAX ACT, 1961 ARE REQUIRED TO BE REFERRED TO . 7.3 'INCOME' HAS BEEN DEFINED UNDER SECTION 2(24) OF T HE ACT. UNDER SECTION 2(24)(X), ANY SUM RECEIVED BY THE ASS ESSEE FROM HIS EMPLOYEES AS CONTRIBUTIONS TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR ANY FUND SET UP UNDER THE EMPLOYEES' STATE INSURANCE ACT, 1948, OR ANY OTHER FUND FOR WELFARE OF SUCH EMPLOYE ES, CONSTITUTE INCOME. SECTION 2(24)(X) READS AS UNDER : 'SECTION 2(24)(X) : ANY SUM RECEIVED BY THE ASSESS EE FROM HIS EMPLOYEES AS CONTRIBUTIONS TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR ANY FUND SET UP UNDER THE EMPLOYEES' STATE INSURANCE ACT, 1948, OR ANY OTHER FUND FOR WELFARE OF SUCH EMPLOYE ES.' 7.4 SECTION 36 OF THE ACT PROVIDES FOR DEDUCTION IN CO MPUTING THE INCOME REFERRED TO IN SECTION 28. THE RELEVANT PROV ISIONS APPLICABLE TO THE PRESENT CASES WOULD BE SECTION 36(1)(VA). AS PER SUB-SECTION 36(1)(VA), ASSESSEE SHALL BE ENTITLED TO THE DEDUCT ION IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 WITH RESPECT T O ANY SUM RECEIVED BY THE ASSESSEE FROM HIS EMPLOYEES TO WHIC H THE PROVISIONS OF SUB- CLAUSE (X) OF CLAUSE (24) OF SECTION 2 APPL Y, IF SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES' ACCOUNTS IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE 'DUE DATE'. AS PER E XPLANATION TO SECTION 36(1)(VA) FOR THE PURPOSE OF THE SAID CLAUS E, 'DUE DATE' MEANS THE DATE BY WHICH THE ASSESSEE IS REQUIRED AS AN EMPLOYER TO CREDIT THE EMPLOYEES' CONTRIBUTION TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND UNDER THE ACT, RULE, ORDER OR NOTIFIC ATION ISSUED THEREUNDER OR UNDER ANY STANDING ORDER, AWARD, CONT RACT OR SERVICE OR OTHERWISE. SECTION 36(1)(VA) READS AS UNDER : 'SECTION 36(1): THE DEDUCTIONS PROVIDED FOR IN THE FOLLOWING CLAUSES SHALL BE ALLOWED IN RESPECT OF THE MATTERS DEALT WI TH THEREIN, IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 SECTION 36(1) (VA) : ANY SUM RECEIVED BY THE ASSESS EE FROM ANY OF HIS EMPLOYEES TO WHICH THE PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) OF SECTION 2 APPLY, IF SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEE'S ACCOUNT IN THE RELEVANT FUND OR FUND S ON OR BEFORE THE DUE DATE. EXPLANATION : FOR THE PURPOSE OF THIS CLAUSE, 'DUE DATE' MEANS THE DATE BY WHICH THE ASSESSEE IS REQUIRED AS AN EMPLOY ER TO CREDIT AN EMPLOYEE'S CONTRIBUTION TO THE EMPLOYEE'S ACCOUNT I N THE RELEVANT FUND UNDER ANY ACT, RULE, ORDER OR NOTIFICATION ISS UED THEREUNDER OR UNDER ANY STANDING ORDER, AWARD, CONTRACT OR SERVIC E OR OTHERWISE.' 7.5 ANOTHER PROVISION WHICH IS REQUIRED TO BE CONSIDER ED WHILE CONSIDERING THE ABOVE CONTROVERSY WOULD BE SECTION 43B OF THE ACT, WHICH STOOD PRIOR TO THE AMENDMENT OF SECTION 43B O F THE ACT VIDE FINANCE ACT, 2003 AND AFTER THE AMENDMENT TO SECTIO N 43B OF THE ACT BY FINANCE ACT, 2003. SECTION 43B OF THE ACT PR IOR TO THE ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 7 - AMENDMENT OF SECTION 43B OF THE ACT VIDE FINANCE AC T, 2003 READS AS UNDER: 'PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SH ALL APPLY IN RELATION TO ANY SUM REFERRED TO IN CLAUSE (A) OR CLAUSE (C) OR CLAUSE (D) OR CLAUSE (E) OR CLAUSE (F), WHICH IS ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE APPLICABLE IN HIS CASE FOR FURN ISHING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 IN RESP ECT OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SU M WAS INCURRED AS AFORESAID AND THE EVIDENCE OF SUCH PAYMENT IS FURNI SHED BY TH ASSESSEE ALONG WITH SUCH RETURN: PROVIDED FURTHER THAT NO DEDUCTION SHALL, IN RESPEC T OF ANY SUM REFERRED TO IN CLAUSE (B), BE ALLOWED UNLESS SUCH S UM 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 EX PLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36, AND W HERE SUCH PAYMENT HAS BEEN MADE OTHERWISE THAN IN CASH, THE S UM HAS BEEN REALISED WITHIN FIFTEEN DAYS FROM THE DUE DATE.' BY THE FINANCE ACT, 2003, SECOND PROVISO TO SECTION 43B OF THE ACT CAME TO BE DELETED AND EVEN THE FIRST PROVISO TO SE CTION 43B OF THE ACT CAME TO BE AMENDED. THE FIRST PROVISO TO SECTIO N 43B OF THE ACT, AFTER ITS AMENDMENT BY THE FINANCE ACT, 2003 READS AS UNDER: 'PROVIDED THAT NOTHING CONTAINED IN THIS SECTION AP PLY IN RELATION TO ANY SUM WHICH IS ACTUALLY PAID BY THE ASSESSEE ON O R BEFORE THE DUE DATE APPLICABLE IN HIS CASE FOR FURNISHING THE RETU RN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 IN RESPECT OF THE PR EVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED AS AFORESAID AND THE EVIDENCE OF SUCH PAYMENT IS FURNISHED BY THE ASSESS EE ALONG WITH SUCH RETURN.' 7.6 CONSIDERING THE AFORESAID PROVISIONS OF THE ACT, A S PER SECTION 2(24)(X), ANY SUM RECEIVED BY THE ASSESSEE FROM HIS EMPLOYEES AS CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATIO N FUND OR ANY FUND SET UP UNDER THE PROVISIONS OF ESI ACT OR ANY OTHER FUND FOR THE WELFARE OF SUCH EMPLOYEES SHALL BE TREATED AS AN 'I NCOME'. SECTION 36 OF THE ACT DEALS WITH THE DEDUCTIONS IN COMPUTIN G THE INCOME REFERRED TO IN SECTION 28 AND AS PER SECTION 36(1)( VA) SUCH SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EMPLOYEES TO WHICH PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) OF SECT ION 2 APPLY, THE ASSESSEE SHALL BE ENTITLED TO DEDUCTION OF SUCH AMO UNT IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 IF SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEE'S ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE 'DUE DATE' I.E. DATE BY WHICH THE ASS ESSEE IS REQUIRED AS AN EMPLOYER TO CREDIT THE EMPLOYEE'S CONTRIBUTIO N TO THE EMPLOYEE'S ACCOUNT IN THE RELEVANT FUND, IN THE PRE SENT CASE, THE PROVIDENT FUND AND ESI FUND UNDER THE PROVIDENT FUN D ACT AND ESI ACT. SECTION 43B IS WITH RESPECT TO CERTAIN DEDUCTI ONS ONLY ON ACTUAL PAYMENT. IT PROVIDES THAT NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THE ACT, A DEDUCTION OTHERWISE LIABLE UNDER THE ACT IN RESPECT OF (B) ANY SUM PAYABLE BY THE ASSESS EE AS AN ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 8 - EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FU ND OR SUPERANNUATION FUND OR GRATUITY FUND OR ANY OTHER F UND FOR THE WELFARE OF THE EMPLOYEES IN COMPUTING THE INCOME RE FERRED TO IN SECTION 28 OF THAT PREVIOUS YEAR IN WHICH SUCH SUM IS ACTUALLY PAID BY HIM. IT APPEARS THAT PRIOR TO THE AMENDMENT OF SECT ION 43B OF THE ACT VIDE FINANCE ACT, 2003, AN ASSESSEE WAS ENTITLE D TO DEDUCTIONS WITH RESPECT TO THE SUM PAID BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUA TION FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF THE EMPLOYEES (EMPLOYER'S CONTRIBUTION) PROVIDED SUCH SUM - EMPLO YER'S CONTRIBUTION IS ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE APPLICABLE IN HIS CASE FOR FURNISHING RETURN O F INCOME UNDER SUB- SECTION (1) OF SECTION 139 IN RESPECT OF THE PREVIO US YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED AND THE EVIDENCE OF SUCH PAYMENT IS FURNISHED BY THE ASSESSEE ALONG WITH SUC H RETURN. IT ALSO FURTHER PROVIDED THAT NO DEDUCTION SHALL, IN RESPEC T OF ANY SUM REFERRED TO IN CLAUSE (B) I.E. WITH RESPECT TO THE EMPLOYER'S CONTRIBUTION, BE ALLOWED UNLESS SUCH SUM IS ACTUALL Y BEEN PAID IN CASH OR BY ISSUE OF CHEQUE OR DRAFT OR BY ANY OTHER MODE ON OR BEFORE THE DUE DATE AS DEFINED IN EXPLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36 AND WHERE SUCH SUM HA S BEEN MADE OTHERWISE THAT IN CASH, THE SUM HAS BEEN REALISED W ITHIN 15 DAYS FROM THE DUE DATE. BY THE FINANCE ACT 2003, SECOND PROVISO OF SECTION 43B OF THE ACT HAS BEEN DELETED AND FIRST P ROVISO TO SECTION 43B HAS ALSO BEEN AMENDED WHICH IS REPRODUCED HEREI NABOVE. THEREFORE, WITH RESPECT TO EMPLOYER'S CONTRIBUTION AS MENTIONED IN CLAUSE (B) OF SECTION 43(B), IF ANY SUM TOWARDS EMP LOYER'S CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATIO N FUND OR GRATUITY FUND OR ANY OTHER FUND FOR THE WELFARE OF THE EMPLO YEES IS ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE APPL ICABLE IN HIS CASE FOR FURNISHING THE RETURN OF THE INCOME UNDER SUB-S ECTION (1) OF SECTION 139, ASSESSEE WOULD BE ENTITLED TO DEDUCTIO N UNDER SECTION 43B ON ACTUAL PAYMENT AND SUCH DEDUCTION WOULD BE A DMISSIBLE FOR THE ACCOUNTING YEAR. HOWEVER, IT IS REQUIRED TO BE NOTED THAT AS SUCH THERE IS NO CORRESPONDING AMENDMENT IN SECTION 36(1 ) (VA). DELETION OF SECOND PROVISO TO SECTION 43B VIDE FINANCE ACT 2 003 WOULD BE WITH RESPECT TO SECTION 43B AND WITH RESPECT TO ANY SUM MENTIONED IN SECTION 43(B) (A TO F) AND IN THE PRESENT CASE, EMPLOYER'S CONTRIBUTION AS MENTIONED IN SECTION 43B(B). THEREF ORE, DELETION OF SECOND PROVISO TO SECTION 43B AND AMENDMENT IN FIRS T PROVISO TO SECTION 43B BY FINANCE ACT, 2003 IS REQUIRED TO BE CONFINED TO SECTION 43B ALONE AND DELETION OF SECOND PROVISO TO SECTION 43B VIDE AMENDMENT PURSUANT TO THE FINANCE ACT, 2003 CANNOT BE MADE APPLICABLE WITH RESPECT TO SECTION 36(1)(VA) OF THE ACT. THEREFORE, ANY SUM WITH RESPECT TO THE EMPLOYEES' CONTRIBUTION AS MENTIONED IN SECTION 36(1)(VA), ASSESSEE SHALL BE ENTITLED TO TH E DEDUCTION OF SUCH SUM TOWARDS THE EMPLOYEE'S CONTRIBUTION IF THE SAME IS DEPOSITED IN THE ACCOUNTS OF THE CONCERNED EMPLOYEES AND IN THE CONCERNED FUND SUCH AS PROVIDENT FUND, ESI CONTRIBUTION FUND, ETC. PROVIDED THE SAID SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYE ES' ACCOUNTS IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE 'DUE DA TE' UNDER THE ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 9 - PROVIDENT FUND ACT, ESI ACT, RULE, ORDER OR NOTIFIC ATION ISSUED THEREUNDER OR UNDER ANY STANDING ORDER, AWARD, CONT RACT OR SERVICE OR OTHERWISE. IT IS REQUIRED TO BE NOTED THAT AS SU CH THERE IS NO AMENDMENT IN SECTION 36(1) (VA) AND EVEN EXPLANATIO N TO SECTION 36(1)(VA) IS NOT DELETED AND IS STILL ON THE STATUT E AND IS REQUIRED TO BE COMPLIED WITH. MERELY BECAUSE WITH RESPECT TO EM PLOYER'S CONTRIBUTION SECOND PROVISO TO SECTION 43B WHICH PR OVIDED THAT EVEN WITH RESPECT TO EMPLOYERS' CONTRIBUTION [(SECTION 4 3(B)B], ASSESSEE WAS REQUIRED TO CREDIT AMOUNT IN THE RELEVANT FUND UNDER THE PF ACT OR ANY OTHER FUND FOR THE WELFARE OF THE EMPLOYEES ON OR BEFORE THE DUE DATE UNDER THE RELEVANT ACT, IS DELETED, IT CAN NOT BE SAID THAT SECTION 36(1)(VA) IS ALSO AMENDED AND/OR EXPLANATIO N TO SECTION 36(1)(VA) HAS BEEN DELETED AND/OR AMENDED. IT IS ALSO REQUIRED TO BE NOTED AT THIS STAGE THAT AS PER THE DEFINITION OF 'INCOME' AS PER SECTION 2(24)(X), ANY SUM RECEIV ED BY THE ASSESSEE FROM HIS EMPLOYEES AS CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR ANY FUND SET UP UNDER THE PROVISIONS OF ESI ACT OR ANY OTHER FUND FOR THE WELFARE OF THE SU CH EMPLOYEES IS TO BE TREATED AS INCOME AND ON FULFILLING THE CONDITIO N AS MENTIONED UNDER SECTION 36(1) (VA), THE ASSESSEE SHALL BE ENT ITLED TO DEDUCTION WITH RESPECT TO SUCH EMPLOYEES' CONTRIBUTION. SECTI ON 2(24)(X) REFERS TO ANY SUM RECEIVED BY THE ASSESSEE FROM HIS EMPLOY EES AS CONTRIBUTION AND DOES NOT REFER TO EMPLOYER'S CONTR IBUTION. UNDER THE CIRCUMSTANCES AND SO LONG AS AND WITH RESPECT TO AN Y SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EMPLOYEES TO WHICH PROVISIONS OF SUB-CLAUSE (X) OF SUB-SECTION 24 OF SECTION 2 APPLI ES, ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTION OF SUCH SUM IN COMPUTI NG THE INCOME REFERRED TO IN SECTION 28 UNLESS AND UNTIL SUCH SUM IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES' ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE AS MENTIONED IN EXPLANATION TO SECTION 36(1)(VA). THEREFORE, WITH RESPECT TO THE EMPLOYEES CONTRIBUTION RECEIVED BY THE ASSESSEE IF THE ASSESSEE HAS NOT CR EDITED THE SAID SUM TO THE EMPLOYEES' ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE MENTIONED IN EXPLANATION TO SEC TION 36(1) (VA), THE ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTIONS OF SUCH AMOUNT IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 OF T HE ACT. 7.7 NOW SO FAR AS THE RELIANCE PLACED UPON THE DECISIO N OF THE HON'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSION S LTD. (SUPRA), BY THE LEARNED ITAT AS WELL AS LEARNED ADVOCATES AP PEARING ON BEHALF OF THE ASSESSEE IN SUPPORT OF THEIR SUBMISSI ON THAT IN VIEW OF AMENDMENT IN SECTION 43B PURSUANT TO FINANCE ACT, 2 003, BY WHICH THE SECOND PROVISO TO SECTION 43B HAS BEEN DELETED AND THEREFORE EVEN WITH RESPECT TO EMPLOYEES CONTRIBUTION DESPITE SECTION 36(1)(VA), AND EXPLANATION TO SECTION 36(1)(VA), IF THE EMPLOYEES' CONTRIBUTION IS CREDITED AFTER THE DUE DATE MENTION ED IN THE PARTICULAR ACT BUT CREDITED ON OR BEFORE THE DUE DATE BY FILIN G RETURN UNDER SECTION 139 OF THE ACT, ASSESSEE SHALL BE ENTITLED TO THE DEDUCTION OF SUCH AMOUNT, IS CONCERNED, ON CONSIDERING THE CONTR OVERSY BEFORE THE HON'BLE SUPREME COURT IN THE CASE OF ALOM EXTRU SIONS ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 10 - LTD. (SUPRA), THE SAID DECISION WOULD NOT BE APPLIC ABLE TO THE FACTS OF THE PRESENT CASE. IN THE SAID CASE BEFORE ALOM EXTR USIONS LTD., THE CONTROVERSY WAS WHETHER THE AMENDMENT IN SECTION 43 B OF THE ACT, VIDE FINANCE ACT, 2003 WOULD OPERATE RETROSPECTIVEL Y W.E.F. 1/4/1988 OR NOT. IT IS ALSO REQUIRED TO BE NOTED THAT IN THE CASE BEFORE THE HON'BLE SUPREME COURT, THE CONTROVERSY WAS WITH RES PECT TO EMPLOYERS' CONTRIBUTION AS PER SECTION 43(B)(B) OF THE ACT AND NOT WITH RESPECT TO EMPLOYEES' CONTRIBUTION UNDER SECTI ON 36(1)(VA). BEFORE THE HON'BLE SUPREME COURT IN THE CASE OF ALO M EXTRUSIONS LTD. (SUPRA) THE HON'BLE SUPREME COURT HAD NO OCCAS ION TO CONSIDER DEDUCTION UNDER SECTION 36(1)(VA) OF THE ACT AND WI TH RESPECT TO EMPLOYEES' CONTRIBUTION. AS STATED ABOVE, THE ONLY CONTROVERSY BEFORE THE HON'BLE SUPREME COURT WAS WITH RESPECT T O AMENDMENT (DELETION) OF THE SECOND PROVISO TO SECTION 43(B) O F THE INCOME TAX ACT, 1961 BY THE FINANCE ACT, 1963 OPERATES W.E.F. 1/4/2004 OR WHETHER IT OPERATES RETROSPECTIVELY W.E.F. 1/4/1988 . UNDER THE CIRCUMSTANCES, THE LEARNED TRIBUNAL HAS COMMITTED A N ERROR IN RELYING UPON THE DECISION OF THE HON'BLE SUPREME COURT IN T HE CASE OF ALOM EXTRUSIONS LTD. (SUPRA) WHILE PASSING THE IMPUGNED JUDGEMENT AND ORDER AND DELETING DISALLOWANCE OF THE RESPECTIVE S UMS BEING EMPLOYEES' CONTRIBUTION TO PF ACCOUNT / ESI ACCOUNT , WHICH WERE MADE BY THE AO WHILE CONSIDERING THE PROVISO TO SEC TION 36(1) (VA) OF THE INCOME TAX ACT. 7.8 NOW, SO FAR AS THE RELIANCE PLACED UPON THE DECISI ON OF THE DIVISION BENCH OF THIS COURT IN THE CASE OF ALEMBIC GLASS INDUSTRIES LTD. (SUPRA) IS CONCERNED, ON FACTS AND CONSIDERING THE PROVISIONS OF SECTION 36(1)(VA) OF THE ACT AS IS STANDS, THE SAID DECISION WOULD NOT BE APPLICABLE TO THE FACTS OF THE CASE ON HAND AND THE CONTROVERSY IN QUESTION. 7.9 NOW, SO FAR AS THE RELIANCE PLACED UPON THE DECISI ON OF THE KARNATAKA HIGH COURT IN THE CASE OF SABARI ENTERPRI SES (SUPRA) IS CONCERNED, ON FACTS AND CONTROVERSY RAISED IN THE P RESENT APPEALS, THE SAID DECISION WOULD NOT BE ANY ASSISTANCE TO TH E ASSESSEE. IN THE CASE BEFORE THE KARNATAKA HIGH COURT, THE DISPUTE W AS WITH RESPECT TO THE EMPLOYER'S CONTRIBUTION AND THE CONTROVERSY WAS WHETHER THE AMENDMENT TO SECTION 43B OF THE ACT WOULD BE RETROS PECTIVE IN NATURE OR NOT. IN THE AFORESAID CASE BEFORE THE KAR NATAKA HIGH COURT, THERE WAS NO DISPUTE WITH RESPECT TO EMPLOYEES' CON TRIBUTION AS IS THERE IN THE PRESENT CASE. 7.10 SIMILARLY, THE DECISION OF THE BOMBAY HIGH COURT I N THE CASE OF PAMWI TISSUES LTD. (SUPRA) ALSO WOULD NOT BE APP LICABLE TO THE FACTS OF THE CASE ON HAND. IN THE CASE BEFORE THE H ON'BLE BOMBAY HIGH COURT, THE DISPUTE WAS WHETHER DELETION OF SEC OND PROVISO TO SECTION 43B WOULD BE APPLICABLE RETROSPECTIVELY OR NOT AND IN THAT CASE THE DISPUTE WAS ALSO WITH RESPECT TO EMPLOYER' S CONTRIBUTION. 7.11 NOW, SO FAR AS THE RELIANCE PLACED UPON THE DECISI ON OF THE HIMACHAL PRADESH HIGH COURT IN THE CASE OF NIPSO PO LYFABRIKS LTD. (SUPRA); DECISION OF THE KARNATAKA HIGH COURT IN THE CASE ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 11 - OF SPECTRUM CONSULTANTS INDIA (P.) LTD. (SUPRA); DE CISION OF THE RAJASTHAN HIGH COURT IN THE CASE OF UDAIPUR DUGDH U TPADAK SAHAKARI SANDG LTD. (SUPRA) AND DECISION OF THE PUNJAB AND H ARYANA HIGH COURT IN THE CASE OF HEMLA EMBROIDERY MILLS (P.) LT D. (SUPRA) TAKING VIEW THAT WHERE THE ASSESSEE DEPOSITED EMPLOYEES' C ONTRIBUTION TO ESI AND PROVIDENT FUND BEFORE THE DUE DATE OF FILIN G THE RETURN UNDER SECTION 139(1) OF THE ACT, THE SAME WOULD BE ALLOWA BLE AS DEDUCTION, ARE CONCERNED, WITH RESPECT AND FOR THE REASONS STA TED HEREINABOVE, WE ARE NOT IN AGREEMENT WITH THE VIEW TAKEN BY THE AFOREMENTIONED HIGH COURTS. AS DISCUSSED HEREINABOVE, AS THERE IS NO AMENDMENT IN SECTION 36(1)(VA) OF THE INCOME TAX ACT AND CONSIDE RING SECTION 36(1) (VA) OF THE INCOME TAX ACT AS IT STANDS, WITH RESPECT TO ANY SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EMPLOY EES TO WHICH THE PROVISIONS OF CLAUSE (X) OF SUB-SECTION (24) OF SECTION 2 APPLIES, ASSESSEE SHALL NOT BE ENTITLED TO DEDUCTION OF SUCH AMOUNT IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 IF S UCH SUM IS NOT CREDITED BY THE ASSESSEE TO THE EMPLOYEES' ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE AS PER EXPL ANATION TO SECTION 36(1)(VA) OF THE ACT. MERELY BECAUSE SECOND PROVISO TO SECTION 43B OF THE ACT IN WHICH THERE WAS A REFERENCE TO DUE DA TE AS DEFINED IN EXPLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36, IT CANNOT BE HELD THAT EVEN SECTION 36(1)(VA) IS AMEND ED AND/OR EVEN EXPLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36 IS ALSO DELETED. IT CAN BE SAID THAT THERE WAS A REFERENCE TO EXPLANATION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36 IN SECOND PROVISO OF SECTION 43B (WHICH HAS BEEN DELETED BY FINANCE A CT, 2003), ONLY FOR THE PURPOSE OF DEFINING DUE DATE AS PER EXPLANA TION BELOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36. THEREFORE, B Y DELETING SECOND PROVISO TO SECTION 43B BY FINANCE ACT, 2003, IT CAN NOT BE SAID THAT SECTION 36(1) (VA) IS AMENDED AND/OR EXPLANATION BE LOW CLAUSE (VA) OF SUB-SECTION (1) OF SECTION 36 IS DELETED, WHICH IS WITH RESPECT TO EMPLOYEES' CONTRIBUTION. UNDER THE CIRCUMSTANCES, W E ARE NOT IN AGREEMENT WITH THE VIEW EXPRESSED BY THE HIMACHAL P RADESH HIGH COURT; KARNATAKA HIGH COURT; RAJASTHAN HIGH COURT A ND PUNJAB AND HARYANA HIGH COURT IN THE CASES REFEREED TO HEREINA BOVE. 7.12 NOW, SO FAR AS THE RELIANCE PLACED UPON THE DECISI ON OF THE HON'BLE SUPREME COURT IN THE CASE OF SARABHAI SONS LTD. (SUPRA), BY THE LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSE SSEE AND HIS SUBMISSION THAT IF TWO VIEWS ARE POSSIBLE AND DIFFE RENT HIGH COURTS HAVE TAKEN A PARTICULAR VIEW, THIS COURT MAY NOT TA KE A DIFFERENT VIEW, IS CONCERNED, WE ARE OF THE OPINION THAT IN T HE PRESENT CASE, AND AS DISCUSSED HEREINABOVE, ONLY ONE VIEW IS POSS IBLE AS CANVASSED ON BEHALF OF THE REVENUE AND AS OBSERVED BY UNDER SECTION HEREINABOVE AND WE ARE NOT IN AGREEMENT WIT H THE VIEW TAKEN BY THE HIMACHAL PRADESH HIGH COURT; KARNATAKA HIGH COURT; RAJASTHAN HIGH COURT AND PUNJAB AND HARYANA HIGH CO URT IN THE CASES REFEREED TO HEREINABOVE, AND THEREFORE, THE S UBMISSION MADE ON BEHALF OF THE ASSESSEE TO FOLLOW THE DECISIONS O F THE DIFFERENT HIGH COURTS REFEREED TO HEREINABOVE AND/OR NOT TO TAKE A CONTRARY VIEW CANNOT BE ACCEPTED. ITA NOS. 819 & 820 OF 2011 HARISH TEX-MACH PRIVATE LTD. VS. ACIT, VAPI CIRCLE FOR A.Y. 2006-07 & 2007-08 - 12 - 8. IN VIEW OF THE ABOVE AND FOR THE REASONS STATED AB OVE, AND CONSIDERING SECTION 36(1)(VA) OF THE INCOME TAX ACT , 1961 READ WITH SUB-CLAUSE (X) OF CLAUSE 24 OF SECTION 2, IT IS HEL D THAT WITH RESPECT TO THE SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EM PLOYEES TO WHICH PROVISIONS OF SUB-CLAUSE (X) OF CLAUSE (24) O F SECTION (2) APPLIES, THE ASSESSEE SHALL BE ENTITLED TO DEDUCTIO N IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 WITH RESPECT TO SU CH SUM CREDITED BY THE ASSESSEE TO THE EMPLOYEES' ACCOUNT IN THE RELEV ANT FUND OR FUNDS ON OR BEFORE THE 'DUE DATE' MENTIONED IN EXPLANATIO N TO SECTION 36(1)(VA). CONSEQUENTLY, IT IS HELD THAT THE LEARNE D TRIBUNAL HAS ERRED IN DELETING RESPECTIVE DISALLOWANCES BEING EM PLOYEES' CONTRIBUTION TO PF ACCOUNT / ESI ACCOUNT MADE BY TH E AO AS, AS SUCH, SUCH SUMS WERE NOT CREDITED BY THE RESPECTIVE ASSESSEE TO THE EMPLOYEES' ACCOUNTS IN THE RELEVANT FUND OR FUNDS ( IN THE PRESENT CASE PROVIDENT FUND AND/OR ESI FUND ON OR BEFORE TH E DUE DATE AS PER THE EXPLANATION TO SECTION 36(1)(VA) OF THE ACT I.E. DATE BY WHICH THE CONCERNED ASSESSEE WAS REQUIRED AS AN EMPLOYER TO CREDIT EMPLOYEES' CONTRIBUTION TO THE EMPLOYEES' ACCOUNT I N THE PROVIDENT FUND UNDER THE PROVIDENT FUND ACT AND/OR IN THE ESI FUND UNDER THE ESI ACT. 9 . CONSEQUENTLY, ALL THESE APPEALS ARE ALLOWED AND T HE IMPUGNED JUDGEMENT AND ORDERS PASSED BY THE TRIBUNAL IN DELE TING THE DISALLOWANCES MADE BY THE AO ARE HEREBY QUASHED AND SET ASIDE AND THE DISALLOWANCES OF THE RESPECTIVE SUMS WITH RESPE CT TO THE PROVIDENT FUND / ESI FUND MADE BY THE AO IS HEREBY RESTORED. THE QUESTIONS RAISED IN PRESENT APPEAL ARE ANSWERED IN FAVOUR OF THE REVENUE. WITH THIS, ALL THESE APPEALS ARE ALLOWED. THEREFORE, THIS GROUND OF APPEAL OF THE REVENUE IS ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE FOR A SSESSMENT YEAR 2006-07 IS DISMISSED AND THAT FOR THE ASSESSME NT YEAR 2007- 08 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 31 ST OF MARCH, 2014 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD;DATED 31/03/2014 GHANSHYAM MAURYA, SR. P.S.