ITA No.323 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ITA N0. 323 of 2009 Date of decision 2 .2.2010 The Commissioner of Income Tax ... Appellant Versus M/s Nuchem Ltd. ... Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE AJAY TEWARI Present: Ms Urvashi Dhugga, Advocate for the appellant 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The Revenue has approached this Court under Section 260 A of the Income Tax Act,1961 (for brevity 'the Act') challenging order dated 19.9.2008 passed by the Income Tax Appellate Tribunal, Delhi Bench 'F', New Delhi (for brevity 'the Tribunal') in ITA No. 736 /Del/08 in respect of the assessment year 2000-01. It has been claimed that following substantive question of law would arise for determination of this Court: “ Whether on the facts and in the circumstances of the case, the ld. ITAT was right in law in allowing the claim of deduction of the PF and ESI in respect of employees' contribution amounting to Rs. 49,62,671/- disallowed by the Assessing Officer and confirmed by the Ld. CIT(A) disregarding the facts that the payments were made beyond the due dates and therefore, not allowable u/s 36(va) and were to be treated as income u/s 2(24 (x) of the Income Tax Act, 1961 “? It could not be successfully disputed by the learned counsel for the Revenue that the aforesaid question of law has been decided by the Hon'ble Supreme Court in a batch of appeals including the case of CIT v. M/s ITA No.323 of 2009 2 Alom Extrusions Ltd (Civil Appeal No. 7771 of 2009 decided on 25.11.2009). The question posed before the Hon'ble Supreme Court was : “ Whether omission (deletion) of the second proviso to Section 43 B of the Income Tax Act,1961 by the Finance Act, 2003 operated with effect from 1st April, 2004 or whether it operated retrospectively with effect from 1st April, 1988 ?“ Relying on an earlier judgement rendered in the case of Allied Motors (P) Ltd v. CIT (1997) 224 ITR 677 where scheme of Section 43 B of the Act was examined, their Lordships of Hon'ble the Supreme Court concluded that Finance Act 2003 was to operate retrospectivly w.e.f. 1.4.1988 when the 1st proviso was inserted despite the fact that Parliament has stated explicitly that Finance Act was to operate w.e.f. 1.4.2004. Likewise reliance has been placed on another judgement of the Hon'ble Supreme Court rendered in the case of CIT v J.H.Gotla (1985) 156 ITR 323. It was for the aforesaid reason that the Hon'ble Supreme Court has held that Finance Act of 2003 is curative in nature. It has also been held that the Act is retrospective and it would operate w.e.f. 1.4.1988. Once the aforesaid position is clear then no question of law framed by the Revenue requires to be adjudicated. The order of the Tribunal is consistent with the view taken by the Hon'ble Supreme Court. Accordingly the appeal fails and the same is dismissed. (M.M.Kumar) Judge (Ajay Tewari ) 2.2.2010 Judge okg