COMMISSIONER OF INCOME TAX vs. M/S HCL INFOSYSTEM LTD.

IN THE HIGH COURT OF DELHI AT NEW DELHI . 18.07.2006 . Present: Ms. P.L. Bansal, Advocate for the Appellant. Ms. Kavita Jha, Advocate for the Respondent. . + ITA No.929/2006 . Admit After perusing ITA Nos. 717/2004 (CIT Vs. M/s. Salora International), 642 and 644/2004 (CIT Vs. Super Safeways Pvt. Ltd.), 490/2005 (CIT Vs. Nuclear Software Workships Pvt. Ltd.) and 497/2005 (CIT Vs. Nitco Marble and Granite Pvt. Ltd.) and considering the submissions of learned counsel for the parties, the following substantial questions of law arise for our consideration - (1)Whether ITAT was correct in law in deleting the addition made by Assessing Officer on account of non payment of employer's contribution towards superannuation funds within the due dates prescribed under the relevant Act / Rules, though paid within the relevant Financial Year or on or before the due date of filing of return for the relevant year? . . (2)Whether on an interpretation of section 43-B read with Explanation to clause (va) of section 36(1), the assessee is entitled to claim deduction of contribution to superannuation funds on actual payment basis despite the fact that the payment was not made before the due date as defined in Explanation to Section 36)1)(va)? . (3)Whether assessee was entitled to claim deduction under section 43B(b) without reference to the 2nd proviso to Section 43B? . (4)Whether ITAT was correct in law in deleting the addition of Rs.42,25,409/- made by the Assessing Officer on account of late payment of contribution to superannuation fund relying on the amended provisions of 1st proviso ignoring the fact that the amendment brought to statute either in 1st proviso or in 2nd proviso to Section 43-B of the Act is applicable with effect from 01.04.12001 and not retrospectively? . Filing of paper-books is dispensed with. . MADAN B. LOKUR, J. . JULY 18, 2006 VIPIN SANGHI, J. Upreti .