The Commissioner Of Income-Tax, Tamil Nadu-V, Chennai v. M/S.synergy Financial Exchange Ltd., 98A, Dr.radhakrishnan Salai, Chennai 600 004

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HON'BLE MR.JUSTICE P.D.DINAKARAN andTHE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA The Commissioner of Income-tax,Tamil Nadu-V, Chennai. ...Appellant. vs.M/s.Synergy Financial Exchange Ltd.,98A, Dr.Radhakrishnan Salai,Chennai 600 004....Respondent Appeal filed against the order of the Income-tax AppellateTribunal, A-Bench, Chennai dated 14.5.1999 in ITA Nos.1959 &1696/Mds/1997 (Commissioner of Income Tax (Appeals)IV, Chennai dated21.5.1997 ITA.184/1997-98 and Deputy Commissioner of Income Tax,Special Range IX, Madras-34 dated 21.3.1997 PA.No.G.I.R.No.47-012-CX-0345/1994-95. The Revenue filed the appeals challenging the order of theIncome-tax Appellate Tribunal dated 14.5.1999 in ITA Nos.1959 &1696/Mds/1997 raising the following questions of law: https://hcservices.ecourts.gov.in/hcservices/ (i) Whether on the facts and in the circumstances of thecase, the Appellate Tribunal is right in law in holdingthat the assessee is entitled to 100% depreciation undersection 32 (1)(ii) of the Income-tax Act, 1961 on gascylinders and spindles? (ii) Whether on the facts and in the circumstances ofthe case, the Appellate Tribunal is right in law indeleting the disallowance of Rs.1,45,399/- being theprovident fund payments applying the provisions ofsection 43B of the Income-tax Act, 1961? 2.1. The assessee is a company engaged in the business ofleasing and hire purchasing. The assessee claimed 100%depreciation with regard to certain assets leased out, namely, gascylinders and spindles. The assessing officer refused to grant100% depreciation in respect of those assets on the ground thatthey should be used collectively and cumulatively, and notindividually and in isolation. On appeal, the said finding of theassessing officer was confirmed by the Commissioner of Income-tax(Appeals). 2.2. Similarly, the assessing officer also disallowed thecontributions made by the assessee toward provident fund undersection 43B of the Income Tax Act (for brevity "the Act") on theground that the payments made by the assessee after the due dateunder the relevant statute, viz., the Provident Fund Act, eventhough they were made during the accounting year would not bedeductible as per the second proviso to Section 43 B of the Actthen in force. On appeal, the Commissioner of Income-tax(Appeals) sustained the said disallowance. 2.3. The assessee preferred appeals before the AppellateTribunal, which, by order dated 14.5.1999, accepted thecontentions of the assessee on both the issues and allowed 100%depreciation on the gas cylinders and spindles and also allowedthe payment of Provident Fund contributions under section 43B ofthe Act. 2.4. Hence, the Revenue has preferred the above appeals, onthe questions of law referred to above. 3.1. Point: (i)- Whether on the facts and in thecircumstances of the case, the Appellate Tribunal is right in lawin holding that the assessee is entitled to 100% depreciationunder section 32 (1)(ii) of the Act, on gas cylinders andspindles? 3.2. Section 32 of the Act deals with depreciation of https://hcservices.ecourts.gov.in/hcservices/ buildings, machinery, plant or furniture, etc., wholly or partlyused for the business or profession for the purpose of deduction.As per the first proviso to Section 32(1) of the Act, which was inforce during the assessment year in question and omitted byFinance Act, 1995, with effect from 1.4.1996, where the actualcost of any machinery or plant does not exceed five thousandrupees, the actual cost thereof shall be allowed as a deductionwithout any restriction, in respect of the previous year in whichthe machinery or plant is first put to use by the company for thepurpose of its business or profession. 3.2. Section 32 of the Act deals with depreciation of https://hcservices.ecourts.gov.in/hcservices/ buildings, machinery, plant or furniture, etc., wholly or partlyused for the business or profession for the purpose of deduction.As per the first proviso to Section 32(1) of the Act, which was inforce during the assessment year in question and omitted byFinance Act, 1995, with effect from 1.4.1996, where the actualcost of any machinery or plant does not exceed five thousandrupees, the actual cost thereof shall be allowed as a deductionwithout any restriction, in respect of the previous year in whichthe machinery or plant is first put to use by the company for thepurpose of its business or profession. 3.3. Section 43 of the Act defines certain terms relevant toincome from profits and gains of business or profession. Sub-section (3) to Section 43 of the Act defines "Plant" as follows: Section:43. Definitions of certain terms relevant to incomefrom profits and gains of business or profession.--Insections 28 to 41 and in this section, unless the contextotherwise requires-- (1)to (2) ... (3) "plant" includes ships, vehicles, books, scientificapparatus and surgical equipment used for the purposes ofthe business or profession but does not include tea bushesor livestock. 3.4. The question that arises for our consideration iswhether each gas cylinder or spindle for which the assessee claims100% depreciation under Section 32(1)(ii) of the Act satisfiesthe definition of 'plant' as defined under Section 43(3) of theAct. 3.5. In Yarmouth v. France [1887] 19 QBD 647, the meaning ofplant was explained as under: " .. in its ordinary sense the word includes whateverapparatus is used by a businessman for carrying on hisbusiness other than the stock-in-trade which he buys ormakes for sale and that it includes all goods and chattels,fixed or movable, live or dead, which he keeps forpermanent employment in his business". 3.6. In CIT v. Taj Mahal Hotel, [1971] 82 ITR 44 (SC), whiledeciding whether a sanitary and pipeline fittings installed in ahotel could be treated as plant, the Apex Court answering thequestion in affirmative held that the intention of theLegislature was to give the expression a very wide meaning. 3.5. In Yarmouth v. France [1887] 19 QBD 647, the meaning ofplant was explained as under: " .. in its ordinary sense the word includes whateverapparatus is used by a businessman for carrying on hisbusiness other than the stock-in-trade which he buys ormakes for sale and that it includes all goods and chattels,fixed or movable, live or dead, which he keeps forpermanent employment in his business". 3.6. In CIT v. Taj Mahal Hotel, [1971] 82 ITR 44 (SC), whiledeciding whether a sanitary and pipeline fittings installed in ahotel could be treated as plant, the Apex Court answering thequestion in affirmative held that the intention of theLegislature was to give the expression a very wide meaning. 3.7. The Gujarat High Court in CIT v. Elecon Engineering Co.Ltd., [1974] 96 ITR 672, held the word 'plant' in its ordinarymeaning is a word of wide import and it must be broadly construedhaving regard to the fact that articles like books and surgicalinstruments are expressly included in the definition of plant insection 43(3) of the Act. It includes any article or object,fixed or movable, live or dead, used by a businessman for carryingon his business. It is not necessarily confined to an apparatuswhich is used for mechanical operations or processes or isemployed in mechanical or industrial business. It would not,however, cover the stock-in-trade, that is, goods bought or madefor sale by a businessman. It would also not include an articlewhich is merely a part of the premises in which the business iscarried on. An article to qualify as 'plant' must furthermorehave some degree of durability and that which is quickly consumedor worn out in the course of a few operations or within a shorttime cannot properly be called plant. But an article would not beany the less plant because it is small in size or cheap in valueor a large quantity thereof is consumed while being employed incarrying on business. In the ultimate analysis, the inquiry whichmust be made is as to what operation the apparatus performs in theassessee's business. The relevant test to be applied is : does itfulfil the function of plant in the assessee's trading activity?Is it the tool of the taxpayer's trade? If it is, then it isplant, no matter that it is not very long-lasting or does notcontain working parts such as a machine does and plays a merelypassive role in the accomplishment of the trading purpose. Theabove view was also confirmed by the Apex Court in Commissioner ofIncome-tax v. Elecon Engineering Co. Ltd. [1987] 166 ITR 66. 3.8. Agreeing with the decisions, in (i) Yarmouth v. France[1887] 19 QBD 647; (ii) CIT v. Taj Mahal Hotel [1971] 82 ITR 44(SC); and (iii) CIT v, Elecon Engineering Co. Ltd., [1974] 96 ITR672, the Delhi High Court in C.I.T. v. National Air Products Ltd.,[1980] 126 ITR 196 held that gas cylinders clearly fall within thescope of the definition of 'plant' defined under Section 43(3) ofthe Act and depreciation was allowable on gas cylinders at 100%. 3.9. A Division Bench of this Court in First Leasing Co. ofIndia Ltd. v. CIT, [2000] 164 CTR 179: [2000] 244 ITR 238, heldthat each bottle was an independent unit and was not dependent forits user on the availability of other bottles whether empty orfilled. The use of one bottle was not interconnected with theuse of another bottles. Since each bottle was an individual unitand all bottles together did not constitute a single integratedunit, depreciation under the proviso to Section 32(1) (ii) of theAct was allowable. 3.10. Another Division Bench of this Court in CIT Vs.Alagendran Finance Ltd, [2004] 186 CTR 102 : [2003] 264 ITR 269 considered the decision in First Leasing Co. of India Ltd. v.CIT, referred supra, and took the same view. 3.9. A Division Bench of this Court in First Leasing Co. ofIndia Ltd. v. CIT, [2000] 164 CTR 179: [2000] 244 ITR 238, heldthat each bottle was an independent unit and was not dependent forits user on the availability of other bottles whether empty orfilled. The use of one bottle was not interconnected with theuse of another bottles. Since each bottle was an individual unitand all bottles together did not constitute a single integratedunit, depreciation under the proviso to Section 32(1) (ii) of theAct was allowable. 3.10. Another Division Bench of this Court in CIT Vs.Alagendran Finance Ltd, [2004] 186 CTR 102 : [2003] 264 ITR 269 considered the decision in First Leasing Co. of India Ltd. v.CIT, referred supra, and took the same view. 3.11. This Bench, after referring to the decisions in FirstLeasing Co. of India Ltd. v. CIT and CIT Vs. Alagendran FinanceLtd, referred supra, has also taken a similar view in CIT v.Upasana Finance Ltd., [2006] 202 CTC 383, and held that onprinting cylinders, MS bins and Shippers Sintex Ice Boxes,depreciation of 100% is allowable under the first proviso toSection 32(1) (ii) of the Act, and each of these assets is a plantindividually as defined under Section 43(3) of the Act. 3.12. Of course, an argument was advanced by Mrs.PushyaSitaraman, learned Senior Standing Counsel appearing for theRevenue that spindles, unless fit into other accessories, cannotbe considered as a plant by itself independently. But, we areunable to appreciate the said contention because the GujaratHigh Court in Aruna Mills Ltd., v. Commr. Of Income Tax, [1966] 59ITR 507, while dealing with replacement of ordinary spindles byroller bearing spindles, held that though spindles were not self-contained units, they must be held to be machinery and therefore,the expenditure incurred in their purchase and in substitutingthem for the old spindles would be entitled to development rebate. 3.13. That apart, this Court in CIT v. Upasana Finance Ltd,referred supra, in the case of printing cylinders, which aremainly used in the printing industry, held that, the matter to beprinted using the printing cylinders are screwed on to thesecylinders and then prints are taken and therefore the printingcylinders were being used as part of the plant within thedefinition of Section 43(3) of the Act. We are of theconsidered opinion that the same analogy is applicable in the caseof spindles also. 3.14. The first question of law is answered in affirmative infavour of the assessee. 4.1. Point (ii): Whether on the facts and in thecircumstances of the case, the Appellate Tribunal is right in lawin deleting the disallowance of Rs.1,45,399/- being the providentfund payments applying the provisions of section 43B of theIncome-tax Act, 1961? 4.2. As per section 43B of the Act, certain deductions areallowable only on actual payment. For the purpose of presentappeal, we are concerned only with the deduction claimed by theassessee towards payment of Provident Fund under section 43B ofthe Act. Section 43B(b) of the Act provides that any sum payableby the assessee as an employer by way of contribution to any https://hcservices.ecourts.gov.in/hcservices/ provident fund or superannuation fund or gratuity fund or anyother fund for the welfare of employees shall be allowed[irrespective of the previous year in which the liability to paysuch sum was incurred by the assessee according to the method ofaccounting regularly employed by him] only in computing the incomereferred to in section 28 of that previous year in which such sumis actually paid by him. https://hcservices.ecourts.gov.in/hcservices/ provident fund or superannuation fund or gratuity fund or anyother fund for the welfare of employees shall be allowed[irrespective of the previous year in which the liability to paysuch sum was incurred by the assessee according to the method ofaccounting regularly employed by him] only in computing the incomereferred to in section 28 of that previous year in which such sumis actually paid by him. 4.3. During the relevant assessment year, namely, 1994-95,the second proviso to section 43-B, as then in force, of course,which stands omitted by the Finance Act, 2003 with effect from1.4.2004, imposed a further condition that no deduction shall, inrespect of any sum referred to in clause (b), be allowed unlesssuch sum has actually been paid in cash or by issue of a cheque ordraft or by any other mode on or before the due date as definedin the Explanation below clause (va) of sub-section (1) of section36, and where such payment has been made otherwise than in cash,the sum has been realised within fifteen days from the due date. 4.4. Explanation to clause (va) "Explanation – For the purposes of this clause,"due date" means the date by which the assessee isrequired as an employer to credit an employee'scontribution to the employee's account in the relevantfund under any Act, rule, order or notification issuedthereunder or under any standing order, award, contractof service or otherwise." (Emphasis supplied) 4.5. By Finance Act, 2003, which came into force from1.4.2004, the said second proviso to section 43-B was omitted theresult being, the assessee is entitled to the deduction of paymentmade towards provident fund, etc. when such payment is actuallymade by the assessee on or before the due date applicable forfiling return, irrespective of the fact that such payment is madeon or before the due date by which the assessee is required tocredit the contribution to the employee's account in the relevantfund under the relevant Act. 4.6. Mr.Senthilkumar, learned counsel for the assesseecontends that in view of the deletion of second proviso to section43B of the Act, the assessee is entitled to deduction even if theassessee made the provident fund contribution after the due dateas mentioned in the relevant Act and for the purpose of claimingdeduction, it is sufficient that the provident fund contributionis made before the due date for furnishing the return. Accordingto the learned counsel for the assessee, the deletion of secondproviso to section 43B by the Finance Act, 2003 with effect from 1.4.2004, should be given retrospective operation so as to make itapplicable to the impugned assessment year 1994-95. 4.7. It is the cardinal principle of construction that everystatute is prima facie prospective unless it is expressly or bynecessary implication made to have retrospective operation (vide:Gem Granites v. Commr. Of Income Tax, (2005) 1 SCC 299, p.296).As a logical corollary of the general rule that retrospectiveoperation is not taken to be intended unless that intention ismanifested by express words or necessary implication, there is asubordinate rule to the effect that a statute or a section in itis not to be construed so as to have larger retrospectiveoperation than its language renders necessary (vide: Shyam sunderv. Ram Kumar AIR 2001 SC 2472 pp.2481, 2482: (2001) 8 SCC 24). 4.7. It is the cardinal principle of construction that everystatute is prima facie prospective unless it is expressly or bynecessary implication made to have retrospective operation (vide:Gem Granites v. Commr. Of Income Tax, (2005) 1 SCC 299, p.296).As a logical corollary of the general rule that retrospectiveoperation is not taken to be intended unless that intention ismanifested by express words or necessary implication, there is asubordinate rule to the effect that a statute or a section in itis not to be construed so as to have larger retrospectiveoperation than its language renders necessary (vide: Shyam sunderv. Ram Kumar AIR 2001 SC 2472 pp.2481, 2482: (2001) 8 SCC 24). 4.8. Of course, it is always not necessary, as contended byMr.Senthilkumar, learned counsel for the assessee, an expressprovision be made to make a statute retrospective and thepresumption against the retrospective operation may be rebuttedby necessary implication, especially in a case where a new law ismade to cure an acknowledged evil for the benefit of the communityas a whole (vide: Zile Singh v. State of Haryana (2004) 8 SCC 1,p.9). But, for this, there should be materials to show that thelegislature intended to cure the acknowledged evil or to removeany such hardship. In other words, the real issue in each caseis as to the dominant intention of the legislature to be gatheredfrom the tests, viz., (ii) the object intended; (iv) the circumstances under which the statute is passed. passed. 4.9. We are constrained to examine the instant case on thebasis of above tests. The second proviso to section 43B of theAct, which stands omitted by the Finance Act, 2003 with effectfrom 1.4.2004, related to a condition imposed on the assessee toclaim deduction of statutory contribution. The condition underthe said second proviso is that to claim deduction, the assesseeshould make payment towards the contribution before the due dateunder the relevant Act, rule, order or notification issuedthereunder or under any standing order, award, contract of serviceor otherwise. https://hcservices.ecourts.gov.in/hcservices/ cannot read anything into a statutory provision or a stipulatedcondition which is plain and unambiguous. A statute is an edict ofthe legislature. The language employed in a statute is thedeterminative factor of legislative intent. The object ofinterpreting a statute is to ascertain the intention of thelegislature enacting it. The intention of the legislature isprimarily to be gathered from the language used, which means thatattention should be paid to what has been said as also to what hasnot been said [vide: Sangeeta Singh v. Union of India,(2005) 7 SCC484]. 4.11. When Parliament enacts law, the law must be understoodwith reference to the language used in the provision construed inthe light of the scheme of the Act and the object of the statuteand the provisions therein. If it is with a view to confer abenefit which had not been conferred before the law was amended,that does not necessarily imply that the amendment is to be givenretrospective effect even without a legislative declaration tothat effect [vide: C.W.T. v. Varadharaja Theatres Pvt. Ltd.( 250ITR 523)]. 4.11. When Parliament enacts law, the law must be understoodwith reference to the language used in the provision construed inthe light of the scheme of the Act and the object of the statuteand the provisions therein. If it is with a view to confer abenefit which had not been conferred before the law was amended,that does not necessarily imply that the amendment is to be givenretrospective effect even without a legislative declaration tothat effect [vide: C.W.T. v. Varadharaja Theatres Pvt. Ltd.( 250ITR 523)]. 4.12. It is a settled law that the fiscal legislationimposing liability is generally governed by normal presumptionthat it is not retrospective (vide: Halsbury's Law of England (3[rd]Edn.) Vol.36, p.425, Union of India v. Madan Gopal AIR 1954 SC158: 1954 SCR 541). It is a cardinal principle of the tax lawthat the law to be applied is that in force in the assessment yearunless otherwise provided expressly or by necessary implication(vide: Reliance Jute and Industries Ltd. v. CIT AIR 1980 SC 251,p. 252: 1980 (1) SCC 139). The above rule is applicable not onlyto the charging section, but also other substantive provision suchas, the provision imposing penalty and it does not apply tomachinery or procedural provisions of a taxing Act which aregenerally retrospective and apply even to pending proceedings(vide: C.W.T., Meerut v. Sharvan Kumar Swarup, 210 ITR 886),because the assessment creates a vested right and the assesseecannot be subjected to reassessment unless a provision to thateffect is inserted either expressly or by necessary implicationretrospectively (vide: Controller of Estate Duty Gujarat-I v.M.A.Merchant, AIR 1989 SC 1710, p.1713: 1989 Supp (1) SCC 499).The same logic is also available to a statutory liability. Aprovision which in terms is retrospective and has the effect ofopening up liability which had become barred by lapse of time,will be subject to the rule of strict construction (vide: CIT.,Bombay v. Onkarmal Meghraj, AIR 1973 SC 2585, p.2589, 25890:(1974) 3 SCC 349). 4.13. We have also gone through the Budget Speech of theHon'ble Minister for Finance for the year 2003-04, the Notes on Clauses of Finance Bill, 2003 dealing with section 43B and theMemorandum explaining the provisions in the Finance Bill, 2003dealing with section 43B of the Act, and we find that they do nothelp the assessee to satisfy either of the above tests in favourof the assessee. It is therefore not permissible in law to takea liberal view or lenient approach to give retrospective effect tothe deletion of second proviso to section 43B of the Act so as toapply the same to the assessment year 1994-95, particularly whenthere is no indication in the Finance Act, 2003 from the languageused and from the object indicated that the legislature intendedexpressly or by implication that the second proviso to section 43Bwas deleted to cure an acknowledged evil for the benefit of thecommunity as a whole or to remove any such hardship, nor there isany express provision in the statute that such deletion of secondproviso to section 43B of the Act will have any retrospectiveeffect. 4.14. Mr.Senthilkumar, learned counsel for the assessee tookus through the Report of the Task Force on Direct Taxes, reportedin [(2003) 179 CTR (St.) 5] whereunder it was recommended todelete the second proviso to section 43B of the Act, but, unlessthere is any material to show that the said recommendation in thereport of the Task Force on Direct Taxes was accepted by thelegislature, it will be difficult for us to come to the conclusionthat the impugned deletion of second proviso to section 43B of theAct was intended to cure the acknowledged evil or to remove thehardship. In any event, it is trite law that a taxing Act cannot,however, be called retrospective if it taxes an event which iscontinuing and not complete when the Act comes into force. 4.14. Mr.Senthilkumar, learned counsel for the assessee tookus through the Report of the Task Force on Direct Taxes, reportedin [(2003) 179 CTR (St.) 5] whereunder it was recommended todelete the second proviso to section 43B of the Act, but, unlessthere is any material to show that the said recommendation in thereport of the Task Force on Direct Taxes was accepted by thelegislature, it will be difficult for us to come to the conclusionthat the impugned deletion of second proviso to section 43B of theAct was intended to cure the acknowledged evil or to remove thehardship. In any event, it is trite law that a taxing Act cannot,however, be called retrospective if it taxes an event which iscontinuing and not complete when the Act comes into force. 4.15. In support of his submission that the deletion ofsecond proviso to section 43B of the Act has to be givenretrospective effect, Mr.Senthilkumar, learned counsel for theassessee relied upon the decision of the Apex Court in ALLIEDMOTORS (P) LTD. v. C.I.T. (224 ITR 677) wherein it is held thatthe first proviso to section 43B of the Act and Explanation 2 haveto be read together as giving effect to the true intention ofsection 43B of the Act and the Explanation 2 being retrospective,the first proviso has also to be so construed. The Apex Court wasdealing with a case relating to the payment of sales tax made bythe assessee after the end of previous year, but within the timeallowed under the relevant sales-tax law. In the factualsituation, the Apex Court held that the first proviso to section43B of the Act has to be treated as retrospective. In so faras the first proviso to section 43B of the Act is concerned, itdeals with statutory liability, such as sales tax liability. Thefirst proviso to section 43B was introduced to remove the hardshipcaused to certain tax payers who had represented that since thesales tax for the last quarter cannot be paid within the previous year, the original provisions of section 43B would unnecessarilyinvolve disallowance of the payment for the last quarter. Thesituation is not the same in the case of payment of contributiontowards provident fund or superannuation fund or gratuity fund orany other fund for the welfare of employees. Therefore, we areunable to accept the submission of the learned counsel for theassessee in this regard. 4.16. The test to be applied for deciding as to whether alater amendment should be given retrospective efect, despite alegislative declaration specifying a prospective date as the datefrom which the amendment is to come into force, is as to whetherwithout the aid of the subsequent amendment the unamendedprovision is capable of being so construed as to take within it'sambit the subsequent amendment [vide: CWT v. B.R.THEATRES ANDINDL. CONCERNS P. LTD. (272 ITR 177)]. 4.16. The test to be applied for deciding as to whether alater amendment should be given retrospective efect, despite alegislative declaration specifying a prospective date as the datefrom which the amendment is to come into force, is as to whetherwithout the aid of the subsequent amendment the unamendedprovision is capable of being so construed as to take within it'sambit the subsequent amendment [vide: CWT v. B.R.THEATRES ANDINDL. CONCERNS P. LTD. (272 ITR 177)]. 4.17. In the instant case, the unamended provision enablesthe assessee to pay contribution towards provident fund,superannuation fund, gratuity fund, etc. before the due dateunder the respective enactments, whereas the amended provision,due to the omission of second proviso to section 43-B of the Act,enables the assessee to pay contribution to provident fund,superannuation fund, gratuity fund, etc. before the filing of thereturn. In other words, if the assessee fails to paycontribution to the provident fund, superannuation fund, gratuityfund, etc. before the due date under the relevant Act is notentitled to the deduction without the aid of subsequent amendment,because only by way of subsequent amendment, due to the omissionof the second proviso to section 43-B of the Act, the assessee isable to get deduction of payments made towards provident fund,superannuation fund, gratuity fund, etc. even if the paymentswere made after the due date under the relevant enactment.Hence, the benefit conferred under the amended provision cannot besaid to be taken care of by the unamended provision. Applying theabove test to the facts of the present case, we are of the viewthat it is not possible to hold that without the aid of thesubsequent Finance Act, 2003 by which the second proviso tosection 43-B was omitted, the unamended provision of section 43-Bwould allow the deduction of payment of provident fund, etc. whensuch payment was made by the assesseee on or before the due dateapplicable for filing return. 4.18. Unless there is an amendment which is clarificatory ordeclaratory in nature, for the removal of doubts, the same cannotbe read into the main provision with effect from the time when themain provision came into force [vide: SEDCO FOREX INTERNATIONALDRILL INC. v. CIT (279 ITR 310)]. But, in the instant case, thereis no material available to hold that the impugned deletion is either clarificatory or declaratory or intended for the removalof doubts to give a consequential retrospective effect to theimpugned deletion so as to make it applicable to the assessmentyear 1994-95. 4.19. This Court in C.I.T. v. MADRAS RADIATORS AND PRESSINGSLTD. (264 ITR 620), after considering the same provisions of law,viz., sections 43B and 36(1)(va) of the Act, held that thedisallowance of provident fund contribution made after the duedate prior to the Finance Act, 2003 is justified. 4.20. The Kerala High Court in C.I.T. v. Standard Tile andClay Works P. Ltd. (265 ITR 525) held that the assessee was notentitled to deduction of the contribution to the provident fundfor the assessment year 1991-92 as the payment made was not withinthe due date as defined in the Explanation to section 36(1)(va) ofthe Income-tax Act, 1961. 4.21. In Halmira Estate Tea Pvt. Ltd. v. C.I.T. (268 ITR 498)the Calcutta High Court held that the provident fund contributionnot made within the due date, cannot be allowed as a deduction inview of section 43B of the Income-tax Act, 1961. 4.22. The Calcutta High Court in C.I.T. v. Sudera ServicesPvt. Ltd. (268 ITR 505) again held that so long as clause (b) ofsection 43B of the Income-tax Act, 1961, and the Explanation existin unmodified terms in the statute book, provident fundcontributions must be made within the due date for those toqualify for deductions under the Income-tax Act. 4.21. In Halmira Estate Tea Pvt. Ltd. v. C.I.T. (268 ITR 498)the Calcutta High Court held that the provident fund contributionnot made within the due date, cannot be allowed as a deduction inview of section 43B of the Income-tax Act, 1961. 4.22. The Calcutta High Court in C.I.T. v. Sudera ServicesPvt. Ltd. (268 ITR 505) again held that so long as clause (b) ofsection 43B of the Income-tax Act, 1961, and the Explanation existin unmodified terms in the statute book, provident fundcontributions must be made within the due date for those toqualify for deductions under the Income-tax Act. 4.23. In C.I.T. v. Udaipur Distillary Co. Ltd. (274 ITR 429)a Division Bench of Rajasthan High Court held that in order toavail the benefits of deduction under clause (b) of section 43B inrespect of contributions to the provident fund, superannuationfund and gratuity fund or any other funds for the welfare of theemployees, the sums are not only to be actually paid before theend of the previous year but are further required to be paidwithin the time stipulated under the relevant statute ornotification, standing order, award, contract of service or otherwise and if the payments have not been made within thestipulated time, the deduction cannot be claimed at any timethereafter. 4.24. For all these reasons, we answer the second question oflaw in favour of the Revenue and against the assessee. 5. In the result, the first question of law referred isanswered in the affirmative, against the Revenue and in favour ofthe assessee. The second question of law is answered in thenegative, in favour of the Revenue and against the assessee. Theappeals are disposed of accordingly. No costs. Sasi/na Sd/Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Assistant Registrar, Income-tax Appellate Tribunal, Rajaji Bhavan, Besant Nagar, Chennai (5 copies with records)2. The Secretary, Central Board of Direct Taxes, New Delhi ( 3 copies)3. The Commissioner of Income-tax (Appeals)-IV, Madras. Income-tax Appellate Tribunal, Rajaji Bhavan, Besant Nagar, Chennai (5 copies with records)2. The Secretary, Central Board of Direct Taxes, New Delhi ( 3 copies)3. The Commissioner of Income-tax (Appeals)-IV, Madras. 4. The Commissioner of Income-tax, Tamil Nadu-V, Madras.5. The Deputy Commissioner of Income-tax, Spl.Range IX, Madras. Madras.5. The Deputy Commissioner of Income-tax, Spl.Range IX, Madras. 1 cc to Mrs.Pushya Sitaraman, Advocate, SR.32784 1 cc to Mr.M.P.Senthil Kumar, Advocate, SR.32737 km (co) dv/30.8.06 T.C.Nos.250 & 251 of 2000