R.M. EXPORTS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS order shall dispose of two appeals bearing IT Appeal Nos. 115 and 116 of 2009 as according to the learned counsel for the parties, the issue involved herein is identical. For brevity, the facts are being extracted from IT Appeal No. 115 of 2009. This appeal has been filed by the assessee under s. 260A of the IT Act, 1961 (in short "the Act") against the order dt. 17th Sept., 2008 passed by the Tribunal, Amritsar Bench, Amritsar in MA No. 33/Asr/2008 arising out of ITA No. 322/Asr/2007, relating to the asst. yr. 2003 -04.

(2.) THE appeal was admitted by this Court vide order dt. 4th Aug., 2009 for determination of the following substantial question of law:

(3.) LEARNED counsel for the appellant submitted that this Court in CIT vs. Avery Cycle Industries (P) Ltd. : (2007) 292 ITR 198 (P&H) on 5th Sept., 2006 had held that the proviso to s. 43B was retrospective and no disallowance could be made if the payment had been made before the due date prescribed under s. 139(1) of the Act. According to the learned counsel, the Hon'ble apex Court in CIT vs. Vinay Cement Ltd. : (2007) 213 CTR (SC) 268 had concluded that any contribution made to the provident fund before filing of the return could not be disallowed under s. 43B of the Act as it stood prior to the amendment w.e.f. 1st April, 2004. Relying upon the judgment of the Hon'ble apex Court in Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 219 CTR (SC) 90: (2008) 12 DTR (SC) 346: (2008) 305 ITR 227 (SC), it was urged that non -consideration of decision of the jurisdictional High Court or of the Hon'ble Supreme Court is a 'mistake apparent from record' which is rectifiable under s. 254(2) of the Act. It was argued that the substantial question of law as claimed is, thus, required to be answered in favour of the assessee and the appeal deserves to be allowed.