JUDGMENT

A.K. Sikri, J.

1. Though the assessees are different in these appeals, the aforesaid question is common in all these cases, which falls for consideration in almost identical factual backdrop. In fact, it is a matter of pure interpretation of the provisions of the Income Tax Act, 1961 (for short, the 'Act'), particularly Section 36(1)(va) of the Act. However, in order to understand the implication, it would be necessary to take note of facts of one appeal. We, accordingly, are stating the facts as they appear in ITA No. 1063/2008.

2. The case relates to the assessment year 2002-03. The respondent assessee had filed its return on 30.10.2002 declaring income at Rs.7,95,430/-. During the assessment proceedings, the Assessing Officer (AO) found that the assessee had deposited employers' contribution as well as employees' contribution towards provident fund and ESI after the due date, as prescribed under the relevant Act/Rules. Accordingly, he made addition of Rs.42,58,574/- being employees' contribution under Section 36(1)(va) of the Act and Rs.30,68,583/- being employers' contribution under Section 43B of the Act. Felt aggrieved by this assessment order, the assessee preferred appeal before the CIT(A), who decided the same vide orders dated 15.7.2005. Though the CIT(A) accepted the contention of the assessee that if the payment is made before the due date of filing of return, no disallowance could be made in view of the provisions of Section 43B, as amended vide Finance Act, 2003, he still confirmed the addition made by the AO on the ground that no documentary proof was given to support that payment was in fact made by the assessee. The assessee filed an application under Section 154 of the Act before the CIT(A) for rectification of the mistake. After having satisfied that payment had, in fact, been made, the CIT(A) rectified the mistake and deleted the addition by holding that the assessee had made the payment before the due date of filing of the return, which was a fact apparent from the record.

3. It was now the turn of the Revenue to feel agitated by these orders and, therefore, the Revenue approached the Income Tax Appellate Tribunal (ITAT) challenging the orders of the CIT(A). The department has, however, remained unsuccessful as the appeal preferred by the department is dismissed by the ITAT vide its impugned decision dated 31.12.2007, which is the subject matter of appeal before us.

Perusal of the order of the Tribunal would show that it has relied upon the judgment of the Supreme Court in the case of CIT v. Vinay Cement Ltd., 213 CTR 268, to support its decision to the effect that if the employers as well as employees' contribution towards provident fund and ESI is paid before the due date of filing of return, no disallowance can be made by the AO.

4. In some other appeals preferred by the assessees, the ITAT has taken contrary view and upheld the addition made by the AOs. Under these circumstances, all these appeals were admitted and heard on the following question of law:

"Whether the ITAT was correct in law in deleting the addition relating to employees' contribution towards Provident Fund and ESI made by the Assessing Officer under Section 36(1)(va) of the Income Tax Act, 1961?"

5. Section 36 of the Act deals with certain deductions which shall be allowed in respect of matters dealt with therein, in computing the income referred to in Section 28 of the Act. Different types of deductions are provided therein in various clauses of Section 36. Clause (iv) of subsection (1) deals with deductions on account of contribution towards a recognized provident fund or an approved superannuation fund made by the assessee as an employer, subject to certain limits and also subject to certain conditions as the CBDT may think fit to specify. Clause (v) of subsection (1) of Section 36 enables the assessee to seek deduction in respect of sum paid by it as an employer by way of contribution towards an approved g