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Judgment
G. Sivarajan, J.—The following questions of law are referred u/s 256(1) of the IT Act, 1961, at the instance of the Revenue.
"Whether, on the facts and in the circumstances of the case and since the payment in the instant case relates to contribution to PF and ESI which came under the purview of the 2nd proviso to Section 43B as per which they have to be made before the due date as provided in Section 36(1)(va), the assessee is entitled to claim the same?
Whether, on the facts and in the circumstances; of the case, the decision of the Supreme Court in Allied Motors (P) Ltd Etc. v. CIT JT(1997) 224 (SC) 677 has application to the facts of the case?"
Learned senior standing counsel appearing for the Revenue submits that the first question is squarely covered by the decision of this Court in CIT v. South India Corporation Ltd. JT (2000) 242 (Ker) 114 . We have also heard Sri Joseph Markos, learned counsel appearing for the assessee, and perused the order of the Tribunal. We find that the Tribunal relying on the decision of the Supreme Court in Allied Motors (P) Ltd. v. CIT JT (1997) 224 (SC) 677 set aside the orders of the assessing authority and the first appellate authority and has remitted the matter to the assessing authority to consider as to whether the assessee has made payments on or before the due date for filing of the return.
In the view of the matter the remit made by the Tribunal is unnecessary and unjustified. We also find that this Court in South India Corporation Ltd.''s case mentioned supra has considered the very same question referred and has clearly held that the contribution to the PF and ESI has to be made within the due dates by which he is legally and contractually required in order to get deduction in view of the proviso to Section 43B of the Act. As such the decision of the Supreme Court mentioned (supra) rendered in a different context has no application in the present case.
Following the decision in South India Corporation Ltd. case (supra), we answer the first question in the negative i.e., in favour of the Revenue and against the assessee. In view of the above, it is unnecessary to answer the second question. We accordingly decline to answer the second question.