The effect of the omission of the second proviso to section 43 B of the Act wef 1-4-2004
December, 05th 2007
Court No. 8
SUPREME COURT OF INDIA
Record of proceedings
Petition(s) for Special leave to Appeal (Civil) . / 2007
(From the judgement and order dated 26/06/2006 in ITA No. 2/2005 & ITA No. 80/2003 of the High Court of Guwahati, Assam)
Commissioner of Income-tax, GauhatiPetitioner(s)
M/s Vinay Cement Ltd.Respondent(s)
(With appln(s) for delay in filing SLP)
Date: 07/03/2007This Petition was called on for hearing today
Honble Mr. Justice S.H. Kapadia
Honble Mr. Justice P.K. Balasubramanyan
For Petitioner (s)Mr. Gopal Subramanium, ASC
Mr. Arijit Prasad, Adv.
Mr. B.V. Balaram Das, Adv.
For Respondent (s)
Upon hearing counsel the Court made the following
O R D E R
In the present case, we are concerned with the law as it stood prior to the amendment of section 43B.In the circumstances the assessee was entitled to claim the benefit in section 43B for that period particularly in view of the fact that he has contributed to provident fund before filing of the return.
COMMISSIONER OF INCOME-TAX v. GEORGE WILLIAMSON (ASSAM) LTD. (AND OTHER APPEALS).
I.T.A. Nos. 76, 56, 91, 80 and 84 of 2003 and 2 of 2005, decided on June 26, 2006.
IN THE GAUHATI HIGH COURT
Counsel : K. P. Sarma, U. Bhuyan - Appellant.
Dr. Ashok Saraf, Ms. N. Hawelia, Ms. M. L. Gope, S. Chetia, Amit Goyal - Respondents.
P. G. AGARWAL, J. - In all these appeals a common question of law raised is regarding interpretation of clause (b) of section 43B of the Income-tax Act, 1961, read with the second proviso to the said section and clause (va) of sub-section (1) of section 36 of the said Act. The matter relates to deposit of contributions made towards provident fund, etc., after the close of the accounting period but before the due date for filling of the return of income and whether in such cases the assessees are entitled to relief under section 43B(b) of the Act.
Learned counsel for both sides have submitted that the question raised in these appeals stands covered by the decision of this court in the case of CIT v. Assam Tribune  253 ITR 93, wherein it was held that the contributions towards provident fund, etc., paid before the filing of the return by the assessees are entitled for the deduction. We also find that the above decision rendered by this court was based on an earlier decision of this court in the case of CIT v. Bharat Bamboo and Timber Suppliers  219 ITR 212.
Mr. Bhuyan appearing for the appellants has fairly submitted that no appeal/special leave petition against the above decision was preferred by the appellants as the amounts involved were small. Mr. Bhuyan has also drawn our attention to a contrary decision of the hon'ble Kerala High Court in the case of CIT v. South India Corporation Ltd.  242 ITR 114. Mr. Bhuyan, has, therefore, prayed that the matter may be reviewed by this court.
Dr. Saraf appearing for the respondents, on the other hand, has submitted that in the meantime, the relevant proviso to section 43B(b) has been amended and the relevant words "referred to in clauses (a), (c), (d), (e), or (f)" have been omitted with effect from April 1, 2004. According to Dr. Saraf, the effect of such omission without any saving clause of the General Clauses Act, means that the above provisions were not existence or never existed. Dr. Saraf has placed reliance on the decisions of the Constitution Bench of the apex court in the cases of Kolhapur Canesugar Works Ltd. v. Union of India  2 SCC 536 and in Rayala Corporation P. Ltd. v. Director of Enforcement  2 SCC 412. The above decisions were reiterated in the case of General Finance Co. v. Asst. CIT  257 ITR 338 (SC).
On consideration of the submissions and on perusal of the earlier decisions of this court we are not inclined to review the decisions in Bharat Bamboo  219 ITR 212 and Assam Tribune  253 ITR 93 and accordingly we hold that the decision of the above cases shall apply to the present appeals.
The appeals, therefore stand dismissed as aforesaid.