“I. Whether The Learned Itat Has Not Erred In Allowing The Deduction U/S 43B On Account Of Employer’s Payment Towards Esi & Epf Even Though They Were Paid Much v. Cit (1997) 139 Ctr (Sc) 364_ , The Cit(A) Upheld The Plea Of The Assessee. It Was Held That Section 43B Added By The Finance Act, 1987 Was

Present : Mr. A.K. Mohapatra, Standing Counsel for the Income Tax Department. 02. 28.01.2014 This appeal has been preferred by the Revenue, under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack, arising out of the order passed in ITA No.269/CTK/2005 dt.30.8.2006 for the assessment year 2000-01, proposing following substantial questions of law. “i. Whether the learned ITAT has not erred in allowing the deduction u/s 43B on account of employer’s payment towards ESI & EPF even though they were paid much beyond the due dates as applicable to those assessment years. ii. Whether the learned ITAT has not erred in law in interpreting that the amendment to the first proviso of Section 43B is retrospective and clarificatory in nature even though no such interpretation is available from the clear language of the provisions.” The Assessing Officer disallowed the deduction of payments towards ESI and EPF which remained outstanding on the ground that the deposit was not within the due date as per Section 36(1)(va) and Section 43B of the Income Tax Act. Relying upon the judgment of the Hon’ble Supreme Court in the case of Allied Motors Pvt. Ltd. vs. CIT (1997) 139 CTR (SC) 364, the CIT(A) upheld the plea of the assessee. It was held that Section 43B added by the Finance Act, 1987 was PKS/BKB clarificatory and, thus, has to be taken to be retrospective. This view has been upheld by the Tribunal. We have heard learned counsel for the Revenue. It is not disputed that the matter is covered by the judgment of the Hon’ble Supreme Court in the case of Allied Motors Pvt. Ltd. (supra). Accordingly, no substantial question of law arises. The appeal is dismissed. ……......……………… A.K.Goel, C.J. ……………………….. Dr A.K.Rath, J.