ITA No. 486 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 486 of 2007 Date of Decision: 9.12.2010 M/s SSP Ltd. ....Appellant. Versus Commissioner of Income Tax, Faridabad ...Respondent. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL. HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Ms. Jyoti, Advocate for the appellant. Ms. Urvashi Dhugga, Advocate for the respondent. AJAY KUMAR MITTAL, J. 1. This Court vide order dated 5.8.2008 while admitting the appeal had framed the following substantial questions of law for determination:- “Whether on the facts and in the circumstances of the case, the omission of second proviso to Section 43B of the Income Tax Act, 1961 by the Finance Act, 2003 with effect from 1.4.2004, will have retrospective operation?” 2. The facts necessary for adjudication as narrated in the instant appeal are that the assessee filed its return on 29.11.2001 for ITA No. 486 of 2007 -2- the assessment year 2001-02 declaring an income of Rs.5,46,966/-. The said return was processed under Section 143(1)(a) of the Income Tax Act, 1961 (in short “the Act”) and thereafter notice under Section 143(2) was issued to the assessee along with detailed questionnaire to which the assessee filed written submissions and attended the proceedings. The Assessing Officer denied the statutory benefit of deduction of Provident Fund and ESI to the assessee holding that benefit in respect of the amounts not paid within due dates under the respective Acts was to be disallowed under Section 43B of the Act. Feeling aggrieved, the assessee filed an appeal and the Commissioner of Income Tax (Appeals) upheld the order of the Assessing Officer. On further appeal by the assessee, the Tribunal dismissed the appeal. Hence, the present appeal by the assessee. 3. We have heard learned counsel for the parties. 4. The point for consideration in this appeal is whether the omission of second proviso to Section 43B of the Income Tax Act, 1961 by the Finance Act, 2003 w.e.f. 1.4.2004, would have retrospective operation. 5. The matter is no longer res integra. The Hon'ble Supreme Court in Commissioner of Income Tax v. Alom Extrusions Ltd. [2009] 319 ITR 306 (SC) has held that the omission of the second proviso to Section 43B of the Act, by the Finance Act, 2003 operated retrospectively with effect from April 1, 1988 and not prospectively from April 1, 2004 as the amendment was to remove the difficulties which were there in the existing provision of Section 43B of the Act. The contrary view taken by the Tribunal, thus, cannot be sustained. ITA No. 486 of 2007 -3- 6. In view of the above, the appeal stands allowed and the substantial question of law is answered in favour of the assessee. (AJAY KUMAR MITTAL) JUDGE December 9, 2010 (ADARSH KUMAR GOEL) gbs JUDGE