PR. COMMISSIONER OF INCOME TAX vs. M/S JAIPUR VIDYUT VITRAN NIGAM LTD.

Order 27/05/2019 The question of law urged by the revenue under Section 260-A of the Income Tax Act directed against the impugned order of the Tribunal is as to whether in view of Section 43-B, the amounts paid towards provident fund contributions after a due date but before the date of filing of the return, could qualify for deduction under Section 36(1)(v). This court is of the opinion – having regard to the decisions cited by the ITAT in its impugned order that the question is covered by the Division Bench ruling of this court in Commissioner of Income Tax Vs. M/S. State Bank of Bikaner and Jaipur [(2014) 363 ITR 70 (Raj.) decided on 06.01.2014]. The court held as follows :- “A conjoint reading of the proviso to section 43-B which was inserted by the Finance Act, 1987 made effective from 1/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, further more second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the assessee. In our view, the explanation

(2 of 2) [ITA-297/2018] appended to section 36 (1) (va) of the Act further envisages that the amount actually paid by the assessee on or before the due date admissible at the time of submitting return of the income under section 139 of the Act in respect of the previous year can be claimed by the assessee for deduction out of their gross total income. It is also clear that section 43B starts with a notwithstanding clause and would thus override section 36(1)(va) and if read in isolation sec. 43B would become obsolete. Accordingly, contention of counsel for the revenue is not tenable for the reason aforesaid that deductions out of the gross income for payment of tax at the time of submission of return under section 139 is permissible only if the statutory liability of payment of PF or other contributions referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. “ It is submitted by the counsel for revenue that the above judgment is subject matter of appeal before the Supreme Court by special leave petition No. 16249/2014. This court is, therefore, of the opinion that the present order would be subject to the final decision of the Supreme Court in the special leave petition pending before the Supreme Court or appeal arising from it.

The appeal is accordingly dismissed subject to the final decision on this question. (G R MOOLCHANDANI),J (S. RAVINDRA BHAT),CJ db/ashu/25