The Commissioner Of Income Tax-15 v. M/S.bright Engineering Works

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO. O. C. J. INCOME TAX APPEAL NO.938 OF 2009 The Commissioner of Income Tax-15. ...Appellant. Vs. M/s.Bright Engineering Works. ...Respondent. .... Mr. Suresh Kumar for the Appellant.None. for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. January 18, 2010. P.C. : The appeal was admitted on the following substantial questions of law: “1.Whether, on the facts and circumstances of the case, the ITZT was justified in deleting the disallowance of employee’s and employer’s contribution to provident fund amounting to Rs.5,19,354/- and Rs.5,89,033/- respectively made under Section 43B of the Income Tax Act, ignoring the fact that : -(i) the above amounts were not paid on or before ud dates, not even within grace period of five days. -(ii) the omission of second proviso of section 43B of the Income Tax Act is of retrospective in nature and is effective only from the date 1[st] April, 2004 i.e. from A.Y. 2004-05, which is not applicable for A.Y. 2003-04 in the instant case. -2.Whether the ITAT is correct in law in holding that omissi9on of 2[nd] proviso to section 43B w.e.f. 1[st] April 2004 is retrospective in nature placing reliance on the judgment of the Apex Court in the case of Vinay Cement 213 CTR 268 (SC) overlooking the judgment of jurisdictional High Court of Bombay in the case of CIT vs. M/s.Pamwi Tissues Ltd. in ITXA No.1034 of 2004 order dated 4[th] February 2008 wherein it was clearly held that the said amendment is not retrospective in nature even after considering the judgment of Hon’ble Supreme Court in the case of Vinay Cement?” Counsel appearing on behalf of the Revenue states that the issues which arise in the appeal are covered against the Revenue, by the judgment of the Supreme Court in CIT vs. Alom Extrusions Ltd., (2009) 319 ITR 306 (SC). In the circumstances, the questions of law shall stand answered against the Revenue, in terms of the judgment of the Supreme Court in Alom Extrusions (supra). The appeal is accordingly dismissed. There shall be no order as to costs. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.)